Jorgensen v The Supreme Court of the Australian Capital; Territory (No 2)
[2023] ACTSC 358
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jorgensen v The Supreme Court of the Australian Capital Territory (No 2) |
Citation: | [2023] ACTSC 358 |
Hearing Date: | 19 June 2023 |
DecisionDate: | 30 November 2023 |
Before: | Curtin AJ |
Decision: | (1) I grant leave to Mr Jorgensen nunc pro tunc pursuant to s 67A(5)(a) of the Supreme Court Act 1933 (ACT) to institute and continue these judicial review proceedings limited to the filing of the application, the hearing of the separate questions, and the procedural steps undertaken for and including the hearing of the separate questions. For the avoidance of doubt, that leave excludes the making of any other application including any application to discontinue the judicial review proceedings. (2) I order that Mossop J be removed as a party to the proceedings. (3) I order that the Supreme Court of the Australian Capital Territory be included as the defendant in the proceedings. (4) I dispense with the requirements set out in r 1521(3)(c)-(e) of the Rules nunc pro tunc for the determination of the separate questions. (5) I answer the separate questions as follows: (i) Question: Was the originally named defendant (Mossop J) a proper party to the proceedings? Answer: No (ii) Question: Does the plaintiff require leave to bring these proceedings pursuant to s 67A(5) of the Supreme Court Act 1933 (ACT)? Answer: Yes (iii) Question: Is the decision sought to be reviewed an administrative decision within the meaning of that term in the Administrative Decisions (Judicial Review) Act 1989 (ACT)? Answer: No (6) I declare these proceedings to be permanently stayed. (7) I order that any documents filed or lodged with the Court by the plaintiff be returned to him by the Registrar. (8) I direct the Registrar that any originating process sought to be filed by Mr Jorgensen in this Court other than an application for leave to institute or continue proceedings pursuant to s 67A(5)(a) of the Supreme Court Act 1933 (ACT) not be given a return date but, after notifying the parties, be referred to a Judge nominated by the Chief Justice, or Acting Chief Justice in the Chief Justice’s absence, to determine, in Chambers, whether the Court should fix a return date or whether Mr Jorgensen should be invited to show cause in writing why the Court should not, in Chambers, summarily declare the proceedings to be permanently stayed. |
Catchwords: | ADMINISTRATIVE LAW – Judicial review – competency of application for judicial review – where applicant has been declared to be a vexatious litigant – whether the applicant requires leave to bring these proceedings pursuant to s 67A of the Supreme Court Act 1933 (ACT) – whether an order declaring an applicant vexatious is an administrative decision – Toeh direction – application stayed |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 4, 5, 6 |
Cases Cited: | Caldar v Carslund [2007] FCA 781 |
Texts Cited: | Halsbury’s Laws of Australia, online edition |
Parties: | Alan Bradley Jorgensen ( Applicant) The Supreme Court of the Australian Capital Territory ( Respondent) |
Representation: | Counsel Self-represented ( Applicant) |
| Solicitors Self-represented ( Applicant) | |
File Number: | SC 161 of 2023 |
CURTIN AJ:
Introduction
In these judicial review proceedings, the following three separate questions were identified at the directions hearing of 6 June 2023 and were argued at the hearing on 19 June 2023. They were:
(1)Was the originally named defendant (Mossop J) a proper party to the proceedings?
(2)Does the plaintiff require leave to bring these proceedings pursuant to s 67A(5) of the Supreme Court Act 1933 (ACT) (the SCA)?
(3)Is the decision sought to be reviewed an administrative decision within the meaning of that term in the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act)?
For the reasons that follow the answers to those questions are:
(1)No.
(2)Yes.
(3)No.
Background
On 10 March 2023, Mossop J delivered judgment in Jorgensen v Wilson (No 2) [2023] ACTSC 40 (Wilson (No 2)) and most relevantly declared Mr Jorgensen to be a vexatious litigant.
His Honour made the following orders:
(1)The application for a further adjournment of the proceedings is refused.
(2)The proceedings are permanently stayed.
(3)The oral application by the plaintiff to discontinue the proceedings is dismissed.
(4)Declare pursuant to s 67A of the Supreme Court Act 1933 (ACT) that Mr Alan Bradley Jorgensen is a vexatious litigant.
(5)The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
(6)Direct that any application by the defendant for a gross sum costs order may only be made within 28 days of the date of these orders.
The factual background relevant to those orders is set out in Wilson (No 2) and this judgment assumes familiarity with those facts.
One result of Order 4 above was that, pursuant to the terms of s 67A(5)(a) of the SCA, Mr Jorgensen was prima facie prohibited from instituting or continuing any proceedings without the leave of the Court.
Mr Jorgensen desired to have Mossop J’s orders overturned and sought to do so in two ways.
First, on 11 April 2023 he filed a Notice of Appeal purporting to appeal from his Honour’s orders.
Second, on 14 April 2023 he filed an Originating Application seeking judicial review of those orders.
On 6 June 2023, both the appeal and the judicial review proceedings came before me for directions.
On that occasion, and subsequently, I was sitting as a single judge of the Court in dealing with the judicial review proceedings pursuant to s 8 of the SCA and concurrently sitting as the Court of Appeal constituted by a single judge in determining whether the Notice of Appeal should be dismissed pursuant to s 37J(1)(h) of the SCA.
When the matters came before me on 6 June 2023 it appeared to me that there were potential difficulties with both matters.
With the consent of Mr Jorgensen and the respondents to the appeal (who were granted leave to make submissions in the judicial review proceedings on the application heard by me on 19 June 2023) a regime was put in place so that those difficulties could be addressed and resolved at an early stage of both matters.
In these judicial review proceedings, the mechanism utilised to resolve those difficulties was the stating of three separate questions pursuant to r 1521 of the Court Procedure Rules 2006 (ACT) (the Rules) which would be determined separately from and prior to any trial of the proceedings.
In the appeal matter, the mechanism utilised was the filing of an application in proceedings by the respondents. The citation for my judgment in that matter is Jorgensen v Wilson [2023] ACTCA 45.
Directions had been made at the directions hearing on 6 June 2023 for the filing and service of written submissions for the hearing of the two matters on 19 June. The respondents were directed to file and serve their written submissions by 12:00 pm on 13 June 2023, and Mr Jorgensen by 5:00 pm on 16 June 2023.
The respondents complied with those directions. Mr Jorgensen did not.
For the avoidance of doubt, I will make orders dispensing with the requirements set out in r 1521(3)(c)-(e) of the Rules nunc pro tunc for the determination of the separate questions, and for reasons which will appear later, I will grant leave to Mr Jorgensen nunc pro tunc to commence these judicial review proceedings but, pursuant to s 67A(6) of the SCA, on condition that the grant of leave is limited to the filing of the originating application, the hearing of the separate questions, and the procedural steps undertaken for and including the hearing of the separate questions. For the avoidance of doubt, that leave excludes the making of any other application including any application to discontinue the judicial review proceedings.
Amicus
I granted leave to the respondents in the associated appeal matter to appear, by their counsel, as amicus curiae, on the hearing of the separate questions in these judicial review proceedings. My discretion to do so was described by Mossop J in R v Collaery (No 2) [2019] ACTSC 296 at [4]-[14].
In short, Mossop J observed that the fundamental point concerning the involvement of an amicus curiae is that permission to participate in that manner is entirely in the court’s discretion. How that discretion is exercised will be determined by the particular circumstances of the case in light of the demands of the administration of justice.
In Re Baby D (No 2) [2011] FamCA 176 Young J described the allowance of an amicus curiae as follows:
[241] The traditional approach of the courts has been that an amicus would be allowed to appear if that organisation or individual could assist the court in being properly informed of material relevant to reaching its decision. Most usually this is achieved through oral submissions. An amicus is not a party or an intervener. Usually they are not permitted to inspect documents, examine or cross examine witnesses or appeal from a decision. As they are not a party any decision of the court is not binding upon the amicus.
[242] Often leave is given for the appearance of an amicus in proceedings to ensure that all relevant submissions are before the court for its consideration. Traditionally the appearance of an amicus is a safeguard to ensure that the relevant legal arguments would be both submitted and tested before the court. Amici Curiae often play the proper and necessary role of a contradictor.
These proceedings were commenced with the named defendant being Mossop J. Justice Mossop was never served with the originating application, nor has the Supreme Court of the ACT. Thus, there was no defendant before the Court which meant that there was no contradictor.
In my view, allowing the respondents to the associated appeal matter, by their counsel, to appear and make submissions on the hearing of the three separate questions in these judicial review proceedings would assist me in being properly informed of any relevant material and would ensure that all relevant submissions and legal arguments were put and tested before me given that Mr Jorgensen is not legally trained.
I formed the view that it was likely that I would be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus was not disproportionate to the expected assistance.
In those circumstances, per Collaery, it was my view that granting the leave I did would serve the administration of justice in the particular circumstances of this case.
The judicial review application
In the application for judicial review Mr Jorgensen claimed (errors in original):
(1)That the entire Order made by Mossop J on 10th March including Vexatious Litigant Order, be set aside as a Judicial Officer simply does not possess that power [nor any other Judge] to unilaterally ban a person from suing in court, as it deprives an Australian citizen of his natural right to sue, which is his God given right as per the Australian Constitution
The grounds of the application for judicial review need not be addressed as they are not relevant to the separate questions.
The submissions of the amicus
As to question 1, the amicus submitted that the application and operation of r 3556(5) in this case was clear.
That rule says:
3556Judicial review – application etc
(1)A statutory order of review or prerogative relief must be sought by way of judicial review by originating application.
(2)-(4)…
(5)If the application relates to an order of a judicial officer of a court or member of a tribunal, the application must name as defendant the court or tribunal and not the judicial officer or member personally.
As to question 2, the amicus submitted that these judicial review proceedings fell within the definition of “proceedings” in s 67A of the SCA, Mr Jorgensen had been declared to be a vexatious litigant on 10 March 2023 and thus by operation of s 67A(5) of the SCA, Mr Jorgensen was disentitled from instituting these proceedings.
As to question 3, the amicus referred to the definition of “a decision to which this Act applies” in the Dictionary to the ADJR Act which, in substance, said it applied to decisions of “an administrative character”.
The amicus cited a number of authorities to the effect that courts have consistently held that judicial decisions are not decisions of an administrative character.
The amicus concluded by submitting that the decision in Wilson (No 2) was a judicial decision, was not of an administrative character and therefore could not be reviewed pursuant to the provisions of the ADJR Act.
Mr Jorgensen’s submissions
As recorded above, the parties had been directed to file and serve their written submissions prior to the hearing.
The amicus filed and served their written submissions on or about 13 June 2023.
Mr Jorgensen had been directed to file and serve his written submissions by 5:00 pm on 16 June, the three issues identified above having been described to Mr Jorgensen on 6 June 2023 and as were outlined in the amicus’s written submissions.
Mr Jorgensen failed to comply with that direction.
During the hearing of the separate questions on 19 June, I imposed a time limit on Mr Jorgensen’s oral submissions of five minutes per separate question against the event that his oral submissions would address irrelevant rather than relevant matters. However, I informed Mr Jorgensen that if he made legally relevant submissions then his time would be extended. At T 16.27 I told Mr Jorgensen:
HIS HONOUR: ... And can I just note, I have power under rule 1401 to impose time limits on people's submissions if you make some legal submissions which are relevant to the issues that I have to decide and those legal submissions will take more than five-minutes then I will extend the time if; however, you make submissions which are not relevant to the legal issues I have to determine then I will enforce the time limit …
At the hearing on 19 June 2023, Mr Jorgensen was granted leave to file and serve written submissions within a further seven days of the conclusion of the hearing on 19 June.
Without any disrespect, Mr Jorgensen’s submissions were legal nonsense. I shall set out Mr Jorgensen’s various oral submissions so that any reader of this judgment can understand my observation.
In relation to question 1, Mr Jorgensen’s oral submissions were as follows (T 9.28 ff):
MR JORGENSEN: Okay. Thank you for that. I will say that this will be my initial off-the-bat comments, but certainly it is not my exhaustive comments because, as I said, I need probably bloody a whole – the whole seven days to sort of pull this apart. But let me just say just off the cuff that I know you can't sue a judge, for example, for making a wrong decision; unless, however, he has breached his judicial oath and that then opens up Pandora's Box or the operations of other sections that allows you to sue a judge if he has acted out by – he has breached his judicial oath, is how it was put in writing that I read.
So, I am saying as much as you can talk to me about 3556, as I said, there's another 3,555 sections that also apply and, therefore, instead of the defendants cherry picking and working out on 3556 – we all know you can easily pick out any case in the world there that is against the norm and, therefore, it shouldn't be accepted verbatim unless it is put in the context of all the other sections. And I am saying here – and you have read my fairly damning appeal and judicial review against Mossop J where he breached every judicial – overreached every judicial duty that he had there by stopping me from withdrawing my case or discontinuing against the four defendants, and he did so so he could try to hang me on this vexatious litigant.
But I was fully aware of what his intensions were back in September/October when I said, 'I'm withdrawing these' – 'my claim against these four defendants and I am wishing to replace them with two others', which were, as I referred to as two bigger fish to fry, and also to add another plaintiff, which was Paul Brodie, who was the one that ASIC and those defendants conspired with to disqualify - - -
HIS HONOUR: Could I - - -
MR JORGENSEN: - - - and justly so - - -
HIS HONOUR: Could I just encourage you to get back to the legal issue at hand, Mr Jorgensen, which is whether or not – whatever your complaints may be about Mossop J, whether there is any rule other than rule 3556, which seems to say to me that, whatever your complaints may be, you could not name Mossop J as the respondent. I would just encourage you to - - -
MR JORGENSEN: Well - - -
HIS HONOUR: - - - address that narrow legal issue; to put your best foot forward, as it were, on that narrow legal issue.
MR JORGENSEN: Yes, I am trying to do that. But what I am saying is common sense will tell you that anyone who acts illegally, all the rules are off the table and therefore I am saying that section 3556 applies probably if there is no mala fides or no extreme bias from the judge or no underhanded decision by him. And I am saying Blind Freddy and the whole world knows that the judge cannot force you to proceed against the other party. Everyone in the world, in Africa or Russia, if you want to withdraw your action against Putin or anyone you like, you are allowed to do it. Now, in this case - - -
HIS HONOUR: Yes. Do you have any - - -
MR JORGENSEN: - - - of course ...(inaudible)…
HIS HONOUR: - - - authority for that proposition, Mr Jorgensen? Do you have any statutory provision you wish to direct my attention to, or any authority that is authority for that proposition?
MR JORGENSEN: And that proposition, to be clear, is that I am saying that Mossop J overreached his power by refusing to allow me to withdraw against these four defendants which are in question; and, further, he instructed the registry to reject and not seal my straightforward application which I had flagged to him three months earlier. And I had put it to the court, to the registry, that 'I am discontinuing the case against these four small fry', just my way of speaking, 'because we have bigger fish to fry that we have now discovered and these four, for want of better words, were only pawns in the game and not the decisionmakers, they were' - - -
HIS HONOUR: Could I just - - -
MR JORGENSEN: - - - 'acting on instructions. So, therefore' - - -
HIS HONOUR: Could I just tell you, Mr Jorgensen - - -
MR JORGENSEN: - - - 'I want to withdraw' - - -
HIS HONOUR: Mr Jorgensen, you have one minute left of your five minutes and I would encourage you again to return to the narrow legal issue of whether or not Mossop J was an inappropriately named party.
MR JORGENSEN: Well, he certainly was that – sorry, he certainly wasn't that because for the reasons I have said in the last four minutes: that he had violated all the normal – not the normal but his judicial oath and, therefore, that opens up Pandora's Box for him to be liable because he can't just act in conjunction, for example, with some other party and then think he can get off scot-free, he has got to face the music. And if he is not allowed to be named then that would be a massive breach of natural justice and procedural fairness. So, on the score of procedural fairness I am saying absolutely he did wrong, I won’t have the opportunity which I’ve already put in writing but I want to have further opportunity to show what – how he overreached his powers immensely so and it was done for his own - - -
HIS HONOUR: All right, well Mr Jorgensen you’ve reached the - - -
MR JORGENSEN: - - - probably devious - - -
HIS HONOUR: Mr Jorgensen, you’ve reached the end of your five minutes on that issue. So we’ll now move to the second issue …
None of those oral submissions address the matter in issue in the first question.
As for the second question, Mr Jorgensen’s oral submissions were similarly irrelevant in that they simply failed to address the narrow legal issue to be decided. Mr Jorgensen’s oral submissions proceeded as follows (T 11.32 ff):
HIS HONOUR: Mr Jorgensen, you’ve reached the end of your five minutes on that issue. So we’ll now move to the second issue and that is whether the judicial review proceedings you have commenced fall within the definition of proceedings in section 67A of the Supreme Court Act and are therefore, caught by Mossop’s J order preventing you from commencing or – let me get the Act – whether the judicial review proceedings are caught by section 67A(5) that is, that you shall not institute or continue any proceedings without the leave of the court.
Now it seems to me the definition of proceedings is very wide, Mr Jorgensen. It seems to catch any proceeding and the judicial review proceedings seem to me to fall within that definition. I’ll give you five minutes from now to make any oral submissions you wish to make as to why these judicial review proceedings don’t fall within section 67A and therefore why they should not be permanently stayed pursuant to section 67A(11). So you have – it’s now 3.32 Mr Jorgensen, I’ll give you five minutes from now.
MR JORGENSEN: Likewise with the first 3556 what I’m saying is oral submissions in five minutes against the senior counsel in the court is that these are only my preliminary, off the cuff five minute summaries in 10 words or less effectively. So therefore, I am not expecting to be bound by this as the limit of my arguments because they’re extensive and I notice that Canberra’s has never been – had a vexatious litigant case so clearly in my opinion. Mossop J and the registry are all saying that, ‘Oh you can’t go you’re a vexatious litigant. You can’t go suing your brother and all that stuff’ that’s just absolute nonsense with all due respects.
So what I’m just saying, the complex issue of vexatious proceedings are not simple. And there’s – I think in all of Australia there’s only been something like 45 or 50 on the register so therefore - - -
HIS HONOUR: Well Mr Jorgensen, this issue seems pretty simple. Because the order, having been made, subsection (5)(a) says that you shall not institute or continue any proceedings without the leave of the court. And the question – the narrow question I’m asking you to address now is whether the judicial review proceedings fall within the definition of proceedings in section 67A. Would you like me to read 67A, the definition? Would that be ---
MR JORGENSEN: No, I don’t, your Honour. But as I’ve previously – my twin brother had a crack at me at this as a tactical measure and spend 100 grand cash trying to make me a vexatious litigant. So I know the subject quite well. And as I said there’s only a few cases, and certainly Canberra hasn’t had a case, and what I’m saying is that Canberra, from the registrar to Mossop J, they haven’t come to understand the rare cases these vexatious litigant proceedings come up.
And I’m saying they’ve got it wrong and in all due respects to yourself for you saying that what you just said to me it flies totally in the face of natural justice and it would be an absolute – what do you say – atrocity for a judge to make a decision – ‘Oh you’re a vexatious litigant, tough. And you can’t sue me because you can’t sue anybody. Now I just made you a vexatious litigant, cop that’. That’s colloquially sort of framed. But that’s what it is.
That would be total violation of natural justice that if a judge can call you a declare you’re a vexatious litigant and therefore you’ve got protection of not getting sued because of that – and that’s what you’re trying to tell me. And like you’re saying that - - -
HIS HONOUR: No, no. No, no what I’m trying to tell you is what section 67A of the Supreme Court Act says and as a judge I have to follow what the Act says. And the Act says that if a judge declares you to be a vexatious litigant, which has happened, then you cannot commence any proceedings without leave of the court.
And the question I’m asking you to address is, whether the – well what I’m putting to you is, are the judicial review proceedings proceedings within the definition of section 67A?
MR JORGENSEN: Well because, as I said, there hasn’t been cases in Canberra before. And I’m not sure what other jurisdictions you have been in but I know when the Chief Justice up in Queensland was making, in my brother’s favour, that I was a vexatious litigant, actually 101 per cent certain – I think it’s section 11 or something like that, I haven’t got it in front of me, it says that – and common sense prevailing, and the law being based on fairness, of course you’ve got an absolute unfettered right to challenge the vexatious litigant proceeding and related matters like the judicial review, because that’s just the way justice is.
You can’t be shut out by the Australian constitution. You’re allowed to sue people and - -
HIS HONOUR: Well section 67A does appear to shut you out from judicial review proceedings. Now it’s now 2.37, your five minutes is up but I’ll give you another minute because I didn’t give you the one minute warning. So you have one minute from now Mr Jorgensen, just on this narrow issue of whether or not the judicial review proceedings fall within section 67A.
MR JORGENSEN: I don’t believe it does and I’m saying that I can’t mount a case against senior counsel, etcetera and it sounds like your Honour has already said you agree with their logic. So I’m trying to turn the Titanic around and I need more than five minutes. And need more than a minute - - -
HIS HONOUR: What I’m trying to - -
MR JORGENSEN: - - - but it’s been extended. So I’m saying - -
HIS HONOUR: But I think they’re right, from my looking at it but I’m asking you for your help to show me why your opponents are wrong. So I’m asking you for what are your legal submissions as to why these judicial review proceedings are not caught by section 67A?
MR JORGENSEN: Because it’s inextricably linked to the appeal against the vexatious litigant ruling and as I said the Chief Justice up in Queensland - - -
HIS HONOUR: We’re not in Queensland Mr - -
MR JORGENSEN: He declared it - - -
HIS HONOUR: - - - Mr Jorgensen. Queensland has its state laws as you know and the ACT has its Territory laws as you know.
MR JORGENSEN: With all due respects, your Honour, these rules are based on precedent. And as you well know and therefore, Canberra’s never been down this road before – the vexatious litigant. So with all due respects they haven’t got a history to fall back on. So as the counsel for the other side has said, they therefore, have to call on the rulings in other jurisdictions and case law.
And they well know but obviously they’re not pokered on me but they well know they’re talking nonsense here. That every vexatious litigant has doesn’t need leave to appeal that judge’s decision.
HIS HONOUR: We’re not dealing with - -
MR JORGENSEN: - - - firstly they’ve got the unfettered right - -
HIS HONOUR: Mr Jorgensen, we’re not dealing with leave to appeal, we’re dealing with the judicial review proceedings. And do you have any of that case law that you mentioned applies in other states that you say helps your case?
MR JORGENSEN: Yes, I think so. The senior counsel there, he prepared he stated those words that because of the limited exposure in Canberra I have to look to other jurisdictions which is right. And therefore, they make - - -
HIS HONOUR: No, no do you have - - -
MR JORGENSEN: - - - mention of many cases - - -
HIS HONOUR: Mr Jorgensen, do you have case law that you want to tell me identify for me that you saw supports your argument that the judicial review proceedings don’t fall within section 67A?
MR JORGENSEN: Well, in the whole of Australia there’s only been 40 something, 40 odd vexatious litigant rulings. Now if you add on top of that the - - -
HIS HONOUR: All right. Mr Jorgensen, I'll take that as a no. The extra minute I gave you has now ended. Can we now move to the third issue ….
As for the third question, Mr Jorgensen’s oral submissions were similarly irrelevant. Mr Jorgensen’s oral submissions proceeded as follows (T 11.32 ff):
HIS HONOUR: All right. Mr Jorgensen, I'll take that as a no. The extra minute I gave you has now ended. Can we now move to the third issue and that is whether or not Mossop J's decision was an administrative decision within the meaning of that term in the Administrative Decisions Judicial Review Act. Your opponents have in their written submissions, provided to you, set out their submissions from paragraph 33 through to 35 and cited some cases. My understanding of the law is that a decision by a judge is not of an administrative character and so Mossop J's decision - it looks like to me a present is not an administrative decision that you can seek judicial review for. It's now 2.41, I'll give you five minutes from now for your legal submissions on why you say Mossop J's decision was an administrative decision.
MR JORGENSEN: Well, I'll repeat what I said in the first two instances and the same here that me as a layperson, it's hardly a fair trial if I'm compelled to, given the circumstances of trying to save my family, my kids, and therefore seeking adjournment, and you're trying to box me in here so it's that later on you said you had the opportunity in five minutes and you even got a minute extension. So I take total exception to that and I think that your Honour's being unfair.
HIS HONOUR: Well, I'm not trying to box you in. I'm just asking for your help on these legal issues, Mr Jorgensen, and without - I don't mean to sound disrespectful but you're telling me about your complaints about Mossop J's decision but not addressing the specific legal issues that I'm asking you for, for your assistance on. And of course, as you know, I will give you another seven days to put something in writing if something occurs to you after today. So I'm not trying to box you in, I'm actually just asking you for your legal assistance on these legal issues that I have to decide. And so can you help me with your side of the story as to why in
a matter of law, Mossop J's decision was an administrative decision as opposed to a judicial one.
MR JORGENSEN: Well, you're asking a layperson here who’s just trying to save his kids.
HIS HONOUR: Well, it's your case, Mr Jorgensen.
MR JORGENSEN: I'd expect that if one of the barristers or yourself got a bout of COVID and said - or suspected COVID - 'I can't attend, I can't hear this case tomorrow.' Well, of course, you're not going to hear it. And what you're saying was well, in this sort of parallel sort of terms, 'If you got COVID, you still got to bloody still front up, earn your money.' Type of thing. And I'm saying is here you are not listening to my request - genuine request on the main grounds or whatever for an extension of seven days, and it's been going on for a long time this case and Mossop J's makes some very --
HIS HONOUR: Mr Jorgensen, I've granted that request. I've said you can put something in in writing within the seven days that you asked for.
MR JORGENSEN: Yes, but I know you'll try to hang me on these five-minute periods you've given me to challenge the Senior Counsel on a very complex part of the law which is hardly ever used. And you're saying, 'Right, you've got your one-minute extension so.' And I've already agreed with the counsel for the defendant's that they're right, and now I'm saying hang on - hang on, hold the phone. And I've read all the case bias etcetera in the high court and I know that once the court - once a judge has made up his mind before he's heard all the facts that's total grounds for setting that case aside. And I'm not trying to - what's the word - overstep my position here but I'm just saying I'm entitled to a fair trial as per the Canberra Human Rights, section 23, the right to a fair trial and I feel as though- - -
HIS HONOUR: And that's why I keep asking you, Mr Jorgensen, for your legal submissions on these particular identified issues.
MR JORGENSEN: And with all due respect, your Honour. I know you've said you're an acting judge and that's why I was trying to find out well, where - what history would you be expected to know on vexatious litigants because Canberra doesn't know anything for the people who have been practised there and been a judge there. So I'm saying is, you trying to fence me in on five-minutes with a minute extension before your time is up, is absolutely a violation of my rights and therefore I am not accepting the fact that you're going to make me say, you've had five-minutes, what's the story, what's the difference between administration and the judicial decision. Well, I reckon that many - most solicitors wouldn't be - even judges wouldn't even know the difference between them and you're trying to put it on a layperson in giving me a minute extension to clarify to the court what it means and I'm just saying is, all as I know is just what the - - -
HIS HONOUR: All right. Well, Mr Jorgensen, you now have one minute left of your five-minutes. If you wish to put anything - legal submission as to this narrow legal issue. And can I just note, I have power under rule 1401 to impose time limits on people's submissions if you make some legal submissions which are relevant to the issues that I have to decide and those legal submissions will take more than five-minutes then I will extend the time if; however, you make submissions which are not relevant to the legal issues I have to determine then I will enforce the time limit, but I'll give you another minute from now, Mr Jorgensen.
MR JORGENSEN: Well, as I said the human rights in Canberra gives me the right to a fair trial under section 23, and it seems like I'm getting anything but that from Mossop J and yourself. So as far as I'm concerned, I'm being denied procedural fairness here and on the humane grounds of what I requested, a seven-day extension because there was lives at stake. So I believe you're not giving me that - - -
HIS HONOUR: As I've said, you've been granted the seven-day extension to be put something in writing. That's been granted or I will make an order to that effect at the end.
MR JORGENSEN: But you're making - you already made up your mind at the start saying that I agree with the counsel and you've repeated that five minutes ago. So I'm cooked here already, and yet Mossop J's decisions were so outrageous; probably the worst decisions in history for a judge in Canberra. And so I'm saying there's massive flaws in his integrity as far as, as I've said, he breaches his judicial oath and once they breach their judicial oath, they're fair game. And I'm saying you're not listening to what I'm saying here, and then you pluck 3556 or 67A or something and asking me to say, well - - -
HIS HONOUR: All right. Well, I'll just stop you there, Mr Jorgensen. ….
In accordance with my directions that day for Mr Jorgensen to supply subsequent written submissions, he supplied submissions by two emails both dated 27 June 2023, and one nine-page attachment headed “WRITTEN SUBMISSIONS RE DIRECTIONS HEARING 19th JUNE 2023”.
His written submissions (covering both the appeal and the judicial review proceedings) did not address the substance of the matters I had to decide.
The first-received email said (errors original):
Dear All, It is obvious to everyone who is over age 16, that Mossop J was only ever interested in one thing, and that was for ASIC to proceed funding Ashurst for the 4 Defendants and to use these 4 to set up an artificial scenario for Mossop J to then be in a position to Declare me to be a Vexatious Litigant. So the Vexatious Litigant Decision must be first determined.
That contrived set-up which was a blatant miscarriage of justice, was engineered by Mossop J, so as to protect ASIC and its Chairman, Joe Longo from being brought to Justice for Obstructing Justice and where Joe Longo incited Tasmanian Regional Commissionaire, Simon Dwyer to Reverse his Guilty Finding in his serious Investigation on the ASIC Officers, Graham Ashworth and Glen Cook.
Mossop J failed as a Judge to take into account that the 4 Defendants all admitted to my serious Allegations, since they failed to deny a single word them which Equals an Admission in law.
Anyway, because Curtin J is Mossop J’s colleague and no doubt spends much time with him every day, then the Judicial Review is just a farce and just a waste of time, so may as well be Discontinued against Mossop J.
In Discontinuing, I need no Leave from Mossop J or Curtin J, or anyone else.
So I hereby Discontinue the Judicial Review ACT 15/2023 which is my right, since Mossop J the sole Respondent, has not filed a Defence nor any submissions.
And because the 4 Defendants are not involved in the Judicial Review, then of course there are no adverse costs orders to be considered in their favour.
Afterall, the Judicial Review was none of their business.
At least this Discontinuance simplifies the issues that Curtin J has to preside over, where Curtin J can focus on the Vexatious Litigant issue, which is a first for the ACT Supreme Court and where there’s been no test of the “virgin” Vexatious Litigant rules in the ACT Supreme Court.
So seems to me the Interstate tested slightly, Vexatious Litigant Rules need to be relied on which was the Respondents’ lawyers view point also.
My view is that the Australian Constitution and the HCA are super clear that every Australian Citizen has the unfettered right to sue.
And only a blatant abuse of a litigant prosecuting the same person or party with a case devoid of merit, can cause a person to
forfeit that sacred right to sue against that particular person in that specific state only.
But is free to sue any other party in that state and any person in Australia out of that state.
And in that case, only an Application by the Respondent being sued, or the Attorney General can cause such a Vexatious Litigant Application, not the Court itself.
Of course the Court or Registry has zero basis to impose its own will on a potential vexatious litigant and then it wants to sit and rule on its own Application.
Such a perverse situation is happening in this Court in another matter my 18 yo son, Jesse James is involved in which has nothing to do with these 4 Defendants, and is simply wishful thinking by the Registry, to step in and block that Litigant.
Which shows one and all that this ACT SC has no business abusing their powers.
Mossop J who has never ever had any experience in Vexatious Litigation thinks he can declare any person a Vexatious Litigant and that decision extends to all other parties in ACT.
And such a miscarriage of justice by Mossop J where he has blatantly breached his Judicial Oath requires the experience of a 3 Judge Court of Appeal and certainly not a mate, a single Judge, such as Curtin J.
Curtin J has already declared that he agreed with the 4 Defendants Submissions in the 10 minutes I was late appearing last Friday due to the Password for the Webex meeting not working and where I from the USA, had sought a 7 day Adjournment due to a potential Family suicide involving 2 children too, on that very day, which was a shockingly heartless decision, and which live suicide note I had copied to Partner at Ashurst, Ms McKean.
So Mr Gaffney this farcical case involving Mossop J and Curtin J will likely be left for the HCA to Correct.
In summary, the Judicial Review is being Discontinued and Appeal left to run where only the matters relating to proving against Mossop J’s scandalous Vexatious Litigant decision will be proceeded with and all other matters decided once the Vexatious Litigant Decision is determined.
The second-received email said (errors original):
See attached my Amended Notice of Appeal which reflects that the Issue concerning the Vexatious Litigation decision by Mossop J, has to be heard and determined first, because the Respondents & Curtin J, all decided in my absence for the first 10 minutes, on 19th June, that the Provisions of the Vexatious Litigants legislation was such that the nominated Vexatious Litigant is prevented from issuing any Appeal or Judicial Review because he is deemed a Vexatious Litigant.
That is totally wrong because any deemed Vexatious Litigant has a natural right to Appeal that Decision.
To say otherwise, flies in the face of an accused person having the right to Appeal under the Australian Constitution.
To argue that is a travesty of Justice and contravenes the right to Natural Justice.
So the Pivotal Point of the Appeal, against Mossop J’s Vexatious Litigant Decision must be determined first then the rest of the Appeal be heard on another date.
It should be noted that the Appellant’s Email today to Ashurst’s Thomas Gaffney and to the Judges Associates of Mossop J and Curtin J should be read in conjunction with these Submissions.
It is expected by the Appellant that his Appeal will in the interests of Justice be determined by 3 Appeal Judges not just 1, in accordance with National State and Federal law.
After this next step of considering the Appeal being heard by 3 Appeal Judges and Hearing the Vexatious Litigant matter first, then the Appellant is seeking that these be heard on different dates.
The nine-page” WRITTEN SUBMISSIONS RE DIRECTIONS HEARING 19th JUNE 2023” (which included pages seemingly intended to constitute an Amended Notice of Appeal as referred to in the second email):
1.recounted many irrelevant matters such as the merits of the matters determined by Mossop J; and
2.submitted that I must recuse myself on the ground of bias (this matter was dealt with in my decision in Jorgensen v Wilson [2023] ACTCA 45 at [72])
I found Mr Jorgensen’s subsequent written submissions to be as irrelevant and unhelpful as his oral submissions on the narrow legal issues I had to determine.
Application to discontinue
I note that in his written submissions Mr Jorgensen purported to discontinue the judicial review proceedings.
As mentioned in my decision in the appeal (Jorgensen v Wilson [2023] ACTCA 45 at [6]), a judge is not required to consider any application made by email or other informal means. I decline to treat this email application for a discontinuance as an application.
Further, the leave granted pursuant to s 67A of the SCA was on terms that no other application could be made. Those terms prevent this application being made.
The proper defendant?
When these proceedings were commenced Mr Jorgensen named Mossop J as the defendant.
Rule 3556(5) of the Rules says, in relation to judicial review proceedings:
If the application relates to an order of a judicial officer of a court or member of a tribunal, the application must name as defendant the court or tribunal and not the judicial officer or member personally.
It is difficult to explain the obvious, and so suffice to say that the originating application related to a judicial officer in that Mr Jorgensen sought to set aside a judicial officer’s orders. It follows that the Supreme Court, and not Mossop J, should have been named as the defendant assuming there was no other impediment to their commencement.
I should note that Mr Jorgensen made no relevant oral or written submissions in relation to this issue and despite the fact that I drew his attention to r 3556(5) on 6 June 2023.
I will order that Mossop J be removed as a party pursuant to r 230(1)(a) of the Rules which says that the Court may order that a person be removed as a party to a proceeding if the person has been inappropriately included as a party. I am able to so at any stage of the proceedings, on my own initiative and whether the person to be removed is a plaintiff or defendant: r 230(2).
Removing Mossop J as a party would mean that there was no defendant. Accordingly, I will order that the proper defendant identified in r 3556(5), namely the Supreme Court of the Australian Capital Territory, be added as the defendant pursuant to r 220 because that entity ought to have been included as party and its joinder is arguably necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding. I am able to make this order at any stage of the proceedings, on my own initiative and whether the person to be included is a plaintiff or defendant: r 220(2).
Is leave required under s 67A to commence proceedings for judicial review?
Section 67A of the Supreme Court Act 1933 (ACT) says:
67A Vexatious litigants
(1)In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b)that lack reasonable grounds.
(2)If, on the application of the Attorney-General or an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3)A declaration may be expressed to apply only in relation to a particular type of matter.
(4)A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5)If a person is declared to be vexatious litigant—
(a)the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b)any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6)If the court gives leave to a person for subsection (5) (a), it may impose the conditions it considers appropriate.
(7)Conditions imposed under subsection (6) in relation to proceedings may include conditions—
(a)relating to security for costs in the proceedings; and
(b) specifying matters relating to the issue of process in the proceedings.
(8)Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9)The court may vary a declaration.
(10)Subject to any order of the court, an order making, varying or revoking a declaration is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
(11)If proceedings are instituted by a person in contravention of this section, the proceedings shall be taken to have been permanently stayed.
(12)If practicable, any documents filed or lodged with a court or tribunal by a person in proceedings referred to in subsection (11) shall be returned to the person by the registrar or similar officer of a court or tribunal.
(13)Notwithstanding subsection (5), a person declared to be vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.
As is stated by s 67A(5), following a declaration that a person is a vexatious litigant, that person is prohibited from instituting or continuing any proceedings without the leave of the court.
The question in this case is whether these proceedings, being proceedings for judicial review, are “proceedings” within that defined term in s 67A.
In my view these judicial review proceedings are such “proceedings”. They are a cause, matter, action, suit or proceeding of any other kind within the ordinary meaning of those terms: see s 67A(1) of the SCA.
The word “proceeding” is not otherwise defined in the dictionary to the SCA, nor is it defined in the Dictionary to the Rules or the Legislation Act 2001 (ACT).
However, the word “proceeding” is used over 5,000 times in the Rules and, it must be said, obviously, that it refers to any process commenced in the Court by way of originating application (as occurred in this case) seeking to invoke the Court’s jurisdiction to hear and decide a dispute and to make orders in accordance with its decision. Such is consistent with one dictionary definition of “proceedings” which is “an action taken in a court to settle a dispute”. Mr Jorgensen’s judicial review proceedings fall within that expression.
I note that in Klewer v Director of Public Prosecutions (NSW) (No 2) (2020) NSWLR 864 Bell P, with whom Simpson AJA agreed, held that leave to bring an application for judicial review was required by the Vexatious Proceedings Act2008 (NSW).
Mr Jorgensen made many submissions, but none of which were relevant to this question. Rather, his submissions were a regurgitation of his perceived grievances against the respondents and Mossop J, and despite my several attempts to encourage him to address the narrow legal question posed by question 1, he declined to do so.
As these judicial review proceedings fall within the definition of “proceedings” in s 67A of the SCA it follows that Mr Jorgensen was prohibited from commencing these proceedings without prior leave of the Court.
The consequences of that finding are as follows.
Section 67A(11) says that if proceedings are instituted by a person declared to be a vexatious litigant in contravention of this section, the proceedings shall be “taken to have been permanently stayed”. I interpret that provision as meaning that the proceedings are taken to have been stayed from their commencement as the expression “taken to have been” is an expression referring to the past. It is to be distinguished from an expression referring to the present such as “shall be taken to be permanently stayed”, an expression not used in s 67A(11).
As I have granted leave to Mr Jorgensen nunc pro tunc to commence these proceedings, I will order that these proceedings be permanently stayed from the date of these orders, and the Registrar will be directed to return any documents filed by Mr Jorgensen to him.
Whether the decision is of an administrative character?
The answer to question 2 is dispositive of the proceedings. However, I will answer question 3 against the event my conclusion in relation to question 1 is incorrect.
Section 5 of the ADJR Act relevantly says:
5Applications for review of decisions
(1)An eligible person may apply to the Supreme Court for an order of review in relation to a decision to which this Act applies on 1 or more of the following grounds:
…
Relevantly, a person may only apply for judicial review to the Supreme Court in relation to a “decision to which this Act applies”.
The dictionary in the ADJR Act provides the following definition:
Decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision mentioned in schedule 1.
Mossop J’s decision does not fall within any of the matters set out in Schedule 1.
Counsel for the amicus submitted that “the courts have consistently held that the expression ‘of an administrative character’ has the deliberate effect of excluding judicial decisions in the curial context from review under the ADJR Act …”.
The amicus relied on Evans v Friemann (1981) 35 ALR 428 at 434 but what his Honour said in that case is not useful here.
The respondents also relied on Griffith University v Tang (2005) 221 CLR 99 at [63] per Gummow, Callinan and Heydon JJ. Their Honours said:
The second element of the definition to which attention is given by the case law is the expression “of an administrative character”. The evident purpose here is the exclusion of decisions of a “legislative” or “judicial” character.
No further assistance in relation to characterising a decision as administrative, judicial or legislative was given in that case.
Distinguishing between the three characterisations is not easy. In Hamblin v Duffy (1981) 34 ALR 333 Lockhart J said at 339:
Important legal consequences flow from the characterization of a particular decision or action as legislative, judicial, ministerial or administrative. The meaning of these expressions has been adverted to in many of the reported cases. They establish the difficulty, if not the impossibility, of expounding definitive meanings of these various expressions. The difficulty is compounded by the fact that a particular category of decision tends to overlap or merge into another.
My research has not revealed any cases concerning decisions of judges, and none were cited by Mr Jorgensen or by the respondents.
In Halsbury’s Laws of Australia, online edition, at [10-11235] the learned authors say (footnotes omitted):
Decisions of registrars of courts are generally of an administrative character. However, decisions which are more closely connected with decision-making by judges are of a judicial character.
Two cases were cited in support of the second sentence, those being Letts v Commonwealth (1985) 8 FCR 585; 62 ALR 517 and Caldar v Carslund [2007] FCA 781, both of which related to decisions by registrars.
In Letts the applicant sought to initiate proceedings in the High Court. The Registrar of the Court considered the proceedings would be an abuse of the process of the Court or a frivolous or vexatious proceeding and sought the direction of a justice of the High Court under O 58, r 4(3). Mason ACJ directed the Registrar not to issue the process unless the party seeking to issue it had first obtained the leave of a justice so to do. The applicant applied to the Federal Court under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the Registrar's decision to seek a direction under O 58, r 4(3).
Toohey J held that the Registrar’s decision was not of an administrative character. His Honour said:
The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. “Although he was not a member of the court he was … part of the organization through which the powers and jurisdiction of the court were exercised …”: Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission (WA) v Edwards, supra, may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that court.
In Caldar, the applicant sought relief in relation to a decision by a High Court registrar to refuse to allow the applicant to file (yet another) application for special leave to appeal from various decisions of single judges of the Supreme Court of NSW. The applicant, Mr Caldar, commenced proceedings against the registrar, Ms Carlsund. Madgwick J said that the applicant’s grounds for relief could be summarised as follows (the reference to “she” being a reference to the registrar concerned):
… that she has denied the applicant natural justice; that she has behaved with impropriety and has exceeded her authority by purporting to shut the applicant out of the High Court although she is not a Justice of that Court; and that she has behaved in bad faith. Nothing in the materials put before the Court would indicate that there is any arguable basis for any of these claims.
His Honour held that the registrar’s decision was judicial and not of an administrative character. In relation to that finding his Honour said at [17]:
It is also the position that, in seeking to apply the rules of court of the High Court to documents sought to be filed by an applicant which sought an exercise or purported to seek an exercise of the judicial power of the Court, a registrar, or deputy registrar as the case may be, is exercising the judicial power of the Court on its behalf and as such is acting judicially and not administratively: see, for example, Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34; Gunter v Doogan [2003] FCA 667.
Based on those authorities I am of the view that Mossop J’s decision was of a judicial and not administrative character because his Honour was exercising the judicial power of the Court and thus was acting judicially and not administratively.
Teoh Direction
In Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 the Court of Appeal issued what has become known as a Teoh direction. The direction was:
The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 [2009] NSWLEC 121 to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
The basal reason their Honours gave for making that direction was that the applicant had brought multiple proceedings in the Court of Appeal, each of which was dismissed and each of which was substantively the same. The Court said at [30]:
Mrs Teoh has failed three times to persuade this Court that she has arguable grounds for leave to appeal from Sheahan J No. 2. She must understand that a fourth application on the same grounds and materials would be vexatious and an abuse of process.
The applicant, Mrs Teoh, had not been declared a vexatious litigant and the Court said, at [31], that it would not make such a declaration without proper notice to her and only after giving her an opportunity to be heard.
However, and relevantly, the Court went on to say at [32]:
The Court however has a duty to conserve its resources and ensure as far as possible that they are available for other litigants. It is therefore entitled to protect itself and its proceedings from abuse by a litigant who may wish to make a fourth application for the same relief.
After referring to the Court’s inherent powers to prevent an abuse of process their Honours held that that principle was not limited to pending actions (at [37]). Their Honours held that a Court, sufficiently apprised of the relevant facts can act of its own motion to protect itself and prevent abuse of its process (at [38]). Their Honours then said:
[39] This Court should act of its own motion to prevent potential abuse of its process should Mrs Teoh file a fourth notice of motion seeking, in substance, the same relief. It should do this by directing the Registrar that the return date for any further motion by Mrs Teoh for the same relief is to be promptly vacated to enable a Judge to review the application on the papers to determine whether there is a case for a fourth hearing. If a Judge in Chambers considers that the material filed warrants a fourth hearing the Court will fix a new return date, and notify the parties.
[40] If a Judge considers, on the material filed, that a fourth hearing is not warranted, Mrs Teoh will be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
Their Honours then made the Teoh direction quoted earlier above.
Mr Jorgensen has been declared to be a vexatious litigant. Despite that declaration he was able to file the originating application in these proceedings. That application was sealed, given a directions hearing date, was listed for directions before me on 6 June and was listed for hearing of the three separate questions before me on 19 June after which this decision was reserved. All of this took place when, per s 67A(11) of the SCA, they should have been permanently stayed.
As mentioned in Teoh, the Court has a duty to conserve its resources and ensure as far as possible that they are available for litigants with legitimate cases rather than vexatious litigants.
Mr Jorgensen’s written submissions contend that “the Australian Constitution and the (High Court of Australia) are super clear that every Australian Citizen has the unfettered right to sue.”
That submission was not supported by any identification of any section of the Constitution which allegedly confers this right, nor to any High Court authority which supports the submission.
In any event, the submission is wrong: see Jorgensen v Wilson [2023] ACTCA 45 at [65].
To prevent a repeat of what occurred in these proceedings, to protect the Court’s processes and to protect other litigants by preventing Mr Jorgensen needlessly absorbing judicial resources which would otherwise be available to other litigants, I shall make a modified Teoh direction directing the Registrar that any originating process sought to be filed by Mr Jorgensen in this Court not be given a return date but, after notifying the parties, be referred to a Judge nominated by the Chief Justice, or Acting Chief Justice in the Chief Justice’s absence, to determine, in Chambers, whether the Court should fix a return date or whether Mr Jorgensen should be invited to show cause in writing why the Court should not, in Chambers, summarily declare the proceedings to be permanently stayed.
Orders
I make the following orders:
(1)I grant leave to Mr Jorgensen nunc pro tunc pursuant to s 67A(5)(a) of the Supreme Court Act 1933 (ACT) to institute and continue these judicial review proceedings limited to the filing of the application, the hearing of the separate questions, and the procedural steps undertaken for and including the hearing of the separate questions. For the avoidance of doubt, that leave excludes the making of any other application including any application to discontinue the judicial review proceedings.
(2)I order that Mossop J be removed as a party to the proceedings.
(3)I order that the Supreme Court of the Australian Capital Territory be included as the defendant in the proceedings.
(4)I dispense with the requirements set out in r 1521(3)(c)-(e) of the Rules nunc pro tunc for the determination of the separate questions.
(5)I answer the separate questions as follows:
(iv)Question: Was the originally named defendant (Mossop J) a proper party to the proceedings?
Answer: No
(v)Question: Does the plaintiff require leave to bring these proceedings pursuant to s 67A(5) of the Supreme Court Act 1933 (ACT)?
Answer: Yes
(vi)Question: Is the decision sought to be reviewed an administrative decision within the meaning of that term in the Administrative Decisions (Judicial Review) Act 1989 (ACT)?
Answer: No
(6)I declare these proceedings to be permanently stayed.
(7)I order that any documents filed or lodged with the Court by the plaintiff be returned to him by the Registrar.
(8)I direct the Registrar that any originating process sought to be filed by Mr Jorgensen in this Court other than an application for leave to institute or continue proceedings pursuant to s 67A(5)(a) of the Supreme Court Act 1933 (ACT) not be given a return date but, after notifying the parties, be referred to a Judge nominated by the Chief Justice, or Acting Chief Justice in the Chief Justice’s absence, to determine, in Chambers, whether the Court should fix a return date or whether Mr Jorgensen should be invited to show cause in writing why the Court should not, in Chambers, summarily declare the proceedings to be permanently stayed.
| I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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