Kant v Principal Registrar of the Federal Court of Australia
[2025] FCA 274
•28 March 2025
FEDERAL COURT OF AUSTRALIA
Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274
File number(s): VID 735 of 2024 Judgment of: MURPHY J Date of judgment: 28 March 2025 Catchwords: HIGH COURT AND FEDERAL COURT — judicial review – abuse of process – where the applicant lodged documents in the Federal Court of Australia seeking to commence three proceedings – where the Court refused the documents under r 2.26 of the Federal Court Rules 2011 (Cth) on the basis that they were an abuse of the Court’s process – where the applicant brought judicial review proceedings under s 39B of the Judiciary Act challenging those decisions – Held: the Registrar’s decision was not affected by error – the proceedings represented an attempt to abuse the Court’s processes – proceeding permanently stayed as an abuse of process. Legislation: Federal Court of Australia Act1976 (Cth) s 35A
Imperial Acts Application Act 1980 (Cth)
Judiciary Act 1903 (Cth) s 39B
Privacy Act 1988 (Cth) ss 12B, 15, 66
Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 119, 121
Federal Court Rules 2011 rr 2.26, 31.05
Habeas Corpus Act 1640
Liberty of Subject Act 1354
Observance of Due Process of Law Act 1368
Cases cited: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353
Ferdinands v Registrar Burns [2024] FCAFC 105
Ferdinands v Registrar Cridland [2021] FCA 592
Ferdinands v Registrar Cridland [2022] FCAFC 80
Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42
Storry v Parkyn(Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318
UBS AG v Tyne [2018] HCA 45; 265 CLR 77
Williams v Spautz [1992] HCA 34; 174 CLR 509
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 65 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: The respondent filed a submitting notice ORDERS
VID 735 of 2024 BETWEEN: JAN MAREK KANT
Applicant
AND: PRINCIPAL REGISTRAR, FEDERAL COURT OF AUSTRALIA
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.The proceeding be permanently stayed as an abuse of process.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J
In this proceeding, by an Amended Originating Application dated 20 August 2024 (the AOA), the applicant, Mr Jan Kant, seeks:
(a)orders for mandamus in respect of three decisions by a Registrar of this Court to refuse to accept for filing documents lodged by the applicant; and
(b)an injunction to restrain the Court from refusing to accept for filing originating processes lodged by the applicant in the future “on grounds involving cursory assessment of the merits of the case”.
For the reasons I explain the proceeding is groundless, without substance, frivolous and vexatious and it is appropriate to permanently stay the proceeding as an abuse of process.
THE MATERIALS
The applicant relied on the following documents:
(a)the AOA (which amended the originating application dated 25 July 2024);
(b)four affidavits affirmed by the applicant dated 25 July 2024, 14 August 2024, 21 August 2024 and 26 August 2024 and the documents exhibited thereto (the first, second, third and fourth affidavits); and
(c)the applicant’s written submissions dated 26 August 2024.
At the request of the applicant the application was determined on the papers.
THE FACTS AND PROCEDURAL HISTORY
The proposed SCV proceeding
On 22 July 2024 the applicant sought to commence a proceeding in this Court by attempting to file an originating application together with his affidavit in support affirmed 22 July 2024 (the proposed SCV proceeding documents). The originating application named the “Chief Justice, Supreme Court of Victoria” as the respondent and sought an injunction from this Court to require the Chief Justice of the Supreme Court “not [to] refuse to seal originating process filed by the Applicant”.
The affidavit in support exhibited the reasons given by the Prothonotary of the Supreme Court for rejecting the filing of three proposed proceedings by the applicant in the period between 22 April and 26 April 2024. In brief summary the Prothonotary said that:
(a)the first proceeding by the applicant alleged that the Supreme Court had refused to hear matters brought by the applicant, and in doing so acted inconsistently with the Magna Carta 1297 and other ancient legislation. The Prothonotary said that proceeding was not accepted for filing because, amongst other things, it did not identify a cause of action;
(b)the second proceeding by the applicant alleged various pieces of criminal legislation were “illegal” and, amongst other things, sought habeas corpus. The Prothonotary said that proceeding was not accepted for filing because it lacked any basis and was incomprehensible; and
(c)the third proceeding by the applicant alleged, amongst other things, that the Commonwealth “produced false materials”. The Prothonotary said that proceeding was not accepted for filing because it was “completely unclear and unexplained” how the applicant sought to invoke the jurisdiction of the Supreme Court.
On 24 July 2024, a Client Services Officer of this Court, being a person acting under the direction of a Registrar of the Court, sent an email to the applicant to advise that the proposed SCV proceeding documents had been rejected for filing (the rejected SCV documents). The email said:
I refer to your Originating Application presented to the Registry for filing on 22 July 2024 (eLodgment ID: 1346518).
The documents have been rejected for filing on the following grounds:
•The Respondent Chief Justice, Supreme Court of Victoria is not a Commonwealth Entity
•The details of the claim are that the Supreme Court of Victoria, and not the named Respondent, not refuse to Seal an Originating Process
I recommend that you seek independent professional legal advice prior to filing any further documents with the Court.
I return the documents to you.
On the following day, 25 July 2024, the applicant commenced the present proceeding, doing so by way of originating application and his affidavit in support affirmed 25 July 2024. This proceeding was accepted for filing. The originating application names the Principal Registrar as the respondent and seeks an order in the nature of mandamus to require that the rejected SCV documents be accepted for filing, and for the proceeding to be commenced accordingly.
The proposed CIA proceeding
Four days later, on 29 July 2024, the applicant sought to commence another proceeding in this Court by attempting to file an originating application dated 27 July 2024 together with an affidavit affirmed 29 July 2024 (the proposed CIA proceeding documents). The affidavit was not in support of the application, rather it went to the alleged impracticability of service. The originating application named the “Director of the United States Central Intelligence Agency” (CIA) and the Australian Information Commissioner (AIC) as respondents, and sought the following relief:
(a)An injunction, under s.121 Regulatory Powers (Standard Provisions) Act 2014 requiring the First Respondent produce, to the Applicant, records of all of the Applicant's personal information as held by the Central Intelligence Agency of the United States.
(b)An injunction requiring the First Respondent produce, to the Applicant, records of all information about the Applicant's affairs as held by the Central Intelligence Agency of the United States.
(c)An injunction, under s.121 Regulatory Powers (Standard Provisions) Act 2014, requiring the Second Respondent do all things necessary to ensure compliance of the First Respondent.
The originating application also sought the following interlocutory relief:
(a) A Rule 31 .04(b) order causing the Originating Application to be served on the First Respondent.
(b) An order reserving the costs of interlocutory relief.
(c)A Rule 16.31 order that the proceeding is to continue on pleadings if neither Respondent:
(i) applies for an order pursuant to subrule 13.01(1); or,
(ii) files a notice of objection to competency; or
(iii)applies to the Court for the question of competency to be heard and determined before the hearing of the application.
By letter to the applicant dated 13 August 2024, National Registrar, Mr Thomas Stewart, refused to accept the proposed CIA proceeding documents for filing (the rejected CIA documents). The letter said:
I refer to the Originating Application and Affidavit submitted to the Victoria Registry of the Federal Court on 27 July 2024 (collectively, the Documents)
The Documents were referred to me as National Duty Registrar to review and determine whether they should be accepted for filing. I have decided that the Documents should be refused for filing in accordance with r 2.26 of the Federal Court Rules 2011 (Cth) (the Rule). These are my reasons for doing so.
The Rule provides 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.
The Document seek injunctions under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) against the Director of the United States Central Intelligence Agency and the Australian Information Commissioner requiring them to provide material you say is held by them. Pursuant to s 119 of the RP(SP) Act an application under Part 7 can only be brought by an ‘authorised person’. Accordingly, I am satisfied that on the face of the Documents they are doomed to fail and, if accepted, would be an abuse of process.
Further, as summarised by White J in Ferdinands v Registrar Cridland [2021] FCA 592 ‘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’: at [30]. I am satisfied that the Documents are without substance and fanciful.
I refuse to accept the Documents for filing in accordance with the Rule.
If you disagree with this decision, it is open to you to make an application for judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). I would encourage you to seek independent and professional legal advice on these matters.
The Documents are returned to you.
The rejected CIA documents were in fact lodged on 29 July 2024, not 27 July 2024 as the National Registrar’s letter suggests.
The proposed AG proceeding
Also on 29 July 2024, the applicant sought to commence another proceeding in this Court by attempting to file an originating application together with his affidavit in support affirmed 29 July 2024 and a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) (s 78B Notice) (the proposed AG proceeding documents).
The originating application named the Commonwealth Attorney-General as the respondent and sought the following relief:
1. a writ of quo warranto, and:
a. orders voiding all warrants issued by the Attorney-General of the Commonwealth that impact upon the rights of the Applicant; and,
b. an order permanently vacating the office of Attorney-General of the Commonwealth.
or alternatively:
2. a writ of certiorari, and:
a. orders voiding all warrants issued by the Attorney-General of the Commonwealth that impact upon the rights of the Applicant; and,
b. a permanent injunction requiring the Attorney-General of the Commonwealth not issue warrants that impact upon the rights of the Applicant.
The s 78B Notice described the constitutional matter as follows:
Nature of Constitutional matter
The Applicant seeks orders voiding the warrants issued by the Attorney-General of the Commonwealth, or issued on behalf of the Attorney-General, that impact upon his rights.
The Applicant also seeks:
i.an order permanently vacating the office of Attorney-General of the Commonwealth; or,
ii.an injunction requiring the Attorney-General not issue warrants that impact upon the rights of the Applicant.
Facts showing that section 78B Judiciary Act 1903 applies
1.Every law made by the Parliament of the Commonwealth that empowers the Attorney General to issue warrants is ultra vires the Constitution.
The applicant’s affidavit in support exhibited the Summary Offences Amendment (Nazi Salute Prohibition) Act 2023 (Vic) and Articles 20 to 22 of International Covenant on Civil and Political Rights (the ICCPR) as reproduced in Schedule 2 of the Australian Human Rights Commission Act1986 (Cth), which the applicant deposed he believed were “false documents” which he “suspected” were “produced under warrant” issued by the Attorney-General. The applicant’s affidavit did not state what interest he had in relation to the amendment to expressly criminalise the use of a Nazi salute.
By letter to the applicant dated 13 August 2024 National Registrar Stewart refused to accept the proposed AG proceeding documents for filing (the rejected AG documents). The letter said:
I refer to the Originating Application, Affidavit and Notice of a Constitutional Matter under section 78B submitted to the Victoria Registry of the Federal Court on 29 July 2024 (collectively, the Documents)
The Documents were referred to me as National Duty Registrar to review and determine whether they should be accepted for filing. I have decided that the Documents should be refused for filing in accordance with r 2.26 of the Federal Court Rules 2011 (Cth) (the Rule). These are my reasons for doing so.
The Rule provides that: [quoted r 2.26, as above]
The Documents seek to commence an application under s 39B of the Judiciary Act 1903 (Cth), in the Court’s original jurisdiction, seeking to have all warrants issued by the Commonwealth Attorney-General voided and to have the office of the Attorney-General permanently vacated.
After consideration of the Documents, I am of the view that they should not be accepted for filing pursuant to rules 2.26 of the Rules. I note that the meaning of the terms ‘frivolous’ and ‘vexatious’ was considered by Justice White in Ferdinands v Registrar Cridland [2021] FCA 592 at [27] to [30]. A matter that is ‘frivolous’ may be described as one that is “without substance or groundless or fanciful’. A proceeding will be appropriately described as ‘vexatious’ where, as set out by McKerracher J, ‘irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless’: Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [38].
I am satisfied that the relief sought in the Documents is without substance, groundless and fanciful, and both frivolous and vexatious. Accordingly, I have refused the Documents for filing in accordance with the Rule.
If you disagree with this decision, it is open to you to make an application for judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). I would encourage you to seek independent and professional legal advice on these matters.
The Documents are returned to you.
The present case
As I have said, the applicant commenced the present proceeding on 25 July 2024 by way of originating application, in which he names the Principal Registrar as the respondent and seeks an order in the nature of mandamus to require that the rejected SCV documents be accepted for filing, and for the proposed proceeding to be commenced accordingly.
On 13 August 2024, the Principal Registrar filed a Submitting Notice, submitting to any order the Court may make in the proceeding, save as to costs.
Also on 13 August 2024, the applicant sought leave to amend the originating application to add claims for relief in relation to the rejected CIA documents and the rejected AG documents, being:
(a)orders in the nature of mandamus to require that the rejected CIA documents and the rejected AG documents be accepted for filing and for those proceedings to be commenced accordingly; and
(b)an injunction requiring the Principal Registrar not to refuse to accept for filing originating process lodged by the applicant on grounds involving “a cursory assessment of merits of the case”.
On 20 August 2024 I made the following orders:
(a)the applicant have leave to file the AOA;
(b)the applicant to file any evidence upon which he wishes to rely, and any written submissions in support of the relief sought in the AOA by 17 September 2024;
(c)the Notice to Admit filed by the applicant be set aside;
(d)the case be determined on the papers subject to my discretion to hold a hearing if I deemed it necessary.
On 20 August 2024 the applicant filed the AOA, and on 21 August 2024 the applicant filed an affidavit affirmed by him that day, which exhibited:
(a)the rejected CIA documents; and
(b)the rejected AG documents.
The applicant also exhibited an originating application, his affidavit in support and a s 78B Notice in a proceeding he commenced against the National Anti-Corruption Commissioner (the NACC proceeding) on 6 August 2024, which seeks the following relief:
A prerogative or statutory writ, or an order of like nature, requiring the Respondent release the "document 3” referred to in his letter dated 5 August 2024.
The section 78B Notice describes the constitutional matter as follows:
Nature of Constitutional matter
The proceeding is judicial review of a decision under Freedom of Information Act 1982 to refuse access to records concerning evaluation and decision-making by the National Anti-Corruption Commission in relation to information it received about a possible corruption issue.
Facts showing that section 78B Judiciary Act 1903 applies
1.a posteriori sections 47C, 47E, 47F & 93A Freedom of Information Act 1982 are ultra vires the Constitution.
THE APPLICANT’S SUBMISSIONS
Although the decisions not to accept for filing the rejected SCV documents, the rejected CIA documents and the rejected AG documents were made by a by Client Services Officer under the direction of a Registrar and by National Registrar Stewart, and this proceeding is brought against the Principal Registrar, the applicant’s submissions allege error by the Federal Court. I proceed on the basis that the alleged errors are errors by a Registrar.
The applicant made the following salient submissions.
The Privacy Act
The applicant submitted that unless the contrary intention appears a federal court is an agency within the meaning of the Privacy Act 1988 (Cth) (Privacy Act). He contended that whenever a federal court is not an agency within the meaning of the Privacy Act, it is an unincorporated association other than an agency; and that an unincorporated association that is not an agency is an organisation within the meaning of the Privacy Act.
He said that because a federal court is an agency or an organisation within the meaning of the Privacy Act, it is therefore:
(a)a regulated entity within the meaning of s.12B of the Privacy Act; and
(b)an APP entity, unless the intention appears that an APP entity not be “an agency or organisation.”
On the applicant’s argument, s 66 of the Privacy Act has the effect it would have if the operation of that Act in relation to federal courts were expressly confined to an operation:
(a)to give effect to the ICCPR; and
(b)to treat federal courts as corporations.
Further, it is submitted that ss 6A, 13, 15 and 12.1 of Schedule 1 of the Act have the effect those provisions would have if the operation of the Privacy Act in relation to federal courts were expressly confined to an operation to give effect to the ICCPR, such that:
(a)s 6A(1) has the effect that it would have if it read:
For the purposes of this Act, conduct breaches a provision of Schedule 1 of the Privacy Act if, and only if, it is contrary to, or inconsistent with that provision.
(b)s 13(1) has the effect that it would have if it read:
Conduct engaged in by a federal court is a violation of rights or freedoms recognised in the [ICCPR] if it breaches a provision of Schedule 1 of the Privacy Act.
(c)s 15 has the effect that it would have if it read:
A federal court must not engage in violation of rights or freedoms recognised in the [ICCPR].
(d)s 12.1 of Schedule 1 has the effect that it would have if it read:
If it is capable of doing so, a federal court must, on request by an individual, do a thing required for giving effect to a right or freedom recognised in the [ICCPR].
(e)s 66(1) has the effect it would have if it read:
A federal court contravenes this subsection if:
(a)the federal court is requested by an individual to do something required for giving effect to a right or freedom recognised in the [ICCPR]; and,
(b)the federal court refuses or fails to do so.
(f)s 66(1AA) also has the effect it would have if it read:
A federal court commits an offence if:
(a)the federal court is an entity of a kind mentioned in subsection 12B(1); and
(b)the federal court engages in conduct that constitutes a system of conduct or a pattern of behaviour; and
(c)the system of conduct or pattern of behaviour results in 2 or more contraventions of subsection (1).
He submitted that by extension of Article 14 of the ICCPR and s 12B(2) of the Privacy Act, s 15 of that Act requires the Federal Court not to fail or refuse to hear any justiciable matter a natural person attempts to bring before it, and that the Privacy Act requires the Federal Court be independent and impartial in determining the case.
The ICCPR
The applicant submitted that a right of judicial remedy to violation of a right or freedom recognised in the ICCPR is itself a right recognised in the ICCPR, and that a right to judicial determination of one’s rights by an independent and impartial tribunal is a right recognised in the ICCPR. The applicant said that a “tribunal” (within the meaning of Article 14 of the ICCPR) that chooses not to hear a matter is not “independent and impartial”.
Federal Court Act/Rules
The applicant submitted that it is for the respondent to object to the competency of an application, and the respondent has not done so. He argued that that is a necessary implication of r 31.05 of the Federal Court Rules 2011 (the Rules) (regarding notice of objection to competence), such that it is beyond power to reject documents for filing under r 2.26 of the Rules on grounds that the proposed proceeding is outside the Federal Court’s jurisdiction. He also contended that it is contrary to s 35A Federal Court of Australia Act1976 (Cth) (FCA Act) for the Federal Court (as I infer, a Registrar) to make a substantive judgment about the underlying merit of claims in a proceeding as that involves the exercise of judicial power.
The asserted errors
The applicant submitted that the Federal Court (as I infer, a Registrar) fell into error in deciding not to accept the rejected SCV documents, the rejected CIA documents and the rejected AG documents for filing. The applicant categorised the asserted errors into “factual errors”, “evaluative errors”, and “jurisdictional errors”. I will retain the applicant’s taxonomy for ease of reference, although I do not accept the correctness of those descriptions.
The asserted factual errors
The applicant submitted that the Federal Court erred in rejecting the filing of:
(a)the proposed CIA proceeding documents on grounds including that they did not disclose a cause of action under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RPSP Act) because the proposed proceeding also seeks equitable relief unrelated to the RPSP Act; and
(b)the proposed AG proceeding documents on grounds including that the proposed proceeding also made claims in the alternative to those referred to in the 13 August 2024 letter, and that the voiding of warrants need not relate to all warrants issued by the Attorney-General.
The asserted evaluative errors
The applicant submitted that the Federal Court erred in rejecting the filing of:
(a)the rejected SCV documents on grounds including that the Chief Justice, Supreme Court of Victoria and the Supreme Court of Victoria are distinct entities, and that he seeks to proceed against the Chief Justice of the Supreme Court of Victoria “on behalf of his [sic] Supreme Court”;
(b)the rejected CIA documents, without giving reasons, on grounds including that the claims are without substance, groundless and fanciful, and frivolous and vexatious. The applicant submitted that he seeks to proceed on pleadings after any questions of service or competency are resolved, and he has not disclosed the grounds of his claims; and
(c)the rejected AG documents, without giving reasons, on grounds including that the claims are without substance, groundless and fanciful, and frivolous and vexatious, as he contended that he has standing and a prima facie case.
The asserted jurisdictional errors
The applicant submitted that the Federal Court erred in rejecting the filing of:
(a)the rejected SCV documents on grounds including that the Chief Justice, Supreme Court of Victoria is not a Commonwealth entity, as that involved a substantive judgment otherwise than in the exercise of judicial power;
(b)the rejected CIA documents on grounds including the requirement under s 119 of the RPSP Act that an applications under Part 7 of that Act be made only by an “authorised person”, as that involved a substantive judgment otherwise than in the exercise of judicial power;
(c)the originating process in each of the three proposed proceedings because doing so violated his “right of judicial remedy” as recognised in the ICCPR; and
(d)the rejected AG documents because it is apparent that no reasonable person could refuse to accept the rejected AG documents for filing on grounds that it is on grounds including the proceeding being without substance, groundless and fanciful, and frivolous and vexatious, and yet not also reject the NACC proceeding documents for filing. The applicant submitted that it must be inferred that the rejected AG documents were refused for filing on grounds not disclosed in the National Registrar’s 13 August 2024 letter, and that the Federal Court is neither independent nor impartial.
The asserted unlawfulness
The applicant also submitted that the decisions to refuse to accept for filing the rejected SCV documents, the rejected CIA documents and the rejected AG documents were “unlawful”, because, in summary:
(a)the decisions to reject the filing of those documents constituted an offence against s 66(1AA) of the Privacy Act. He contended that the Federal Court was aware that it had a “duty to hear any justiciable matter that a natural person attempts to bring before it” and it committed a crime by refusing to accept the documents for filing;
(b)the effect of the Observance of Due Process of Law Act 1368 is that the decisions to reject the filing of those documents were void and inoperative; that r 2.26 of the Rules is void and inoperative, and the relevant decisions were made in error of jurisdiction and unlawful; and
(c)the decisions to reject the filing of those documents were each unlawful because of:
(i)the Liberty of Subject Act 1354;
(ii)the Observance of Due Process of Law Act 1368;
(iii)s 3 of the Habeas Corpus Act 1640;
(iv)s 8 of the Imperial Acts Application Act 1980 (Cth);
(v)s 35A of the FCA Act; and
(vi)ss 15, 66(1) and 66(1AA) of the Privacy Act.
PRINCIPLES RELATING TO THE REGISTRAR’S POWER UNDER RULE 2.26
Rule 2.26 of the Rules relevantly provides:
2.26Refusal to accept document for filing—abuse of process or frivolous or vexatious documents
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.
Nature and purpose of the power under r 2.26
The Full Court described the purpose of the predecessor provision to r 2.26, being O 46 r 7A of the Federal Court Rules 1979 (Cth), as “to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court”: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 at [15] (Lee, Whitlam and Jacobson JJ).
In Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [36] Wheelahan J said, and I agree, that “[t]he purpose of r 2.26 is to empower a Registrar to protect court procedures from abuse by refusing to accept a document for filing which, on its face, would be an abuse of court process or frivolous or vexatious.”
Meaning of “abuse of process” and “frivolous or vexatious” in r 2.26
As to what amounts to abuse of process Wheelahan J explained in Luck at [36]:
…As to what amounts to an abuse of process, the categories are not closed. In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [69], Edelman J explained that there are at least three established categories of abuse of process: (i) the use of the court’s processes for an illegitimate purpose; (ii) the use of the court’s processes in a manner that is unjustifiably oppressive to one of the parties; and (iii) the use of the court’s processes in a manner that impairs the integrity of the court. The three categories undoubtedly overlap, because each invites consideration of whether there is some real question in issue. Within the first category are processes involving a collateral attack on earlier decisions. Within the second category are processes that raise issues that are frivolous or vexatious, or which fail to disclose a cause of action. Issues that are frivolous or vexatious include those that are manifestly groundless or hopeless: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). See also Ferdinands v Registrar Burns [2024] FCAFC 105 at [22] (Cheeseman, Goodman and McEvoy JJ). Within the second and third categories is process that is prolix such as to amount to oppression or which impairs the processes of the Court. And the power under r 2.26 must be interpreted and applied in the way that best promotes the overarching purpose referred to in s 37M of the Federal Court of Australia Act.
(Emphasis added.)
In Ferdinands v Registrar Cridland [2021] FCA 592 White J explained the meaning of “frivolous or vexatious” in the context of r 2.26, doing so by reference to the appearance of that phrase in the definition of “vexatious proceeding” in s 37AM(1) of the FCA Act and in the authorities. His Honour concluded (at [30]) 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.
That formulation was approved by the Full Court in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8] (Ferdinands FC) (Charlesworth, Burley and Cheeseman JJ) and Ferdinands v Registrar Burns [2024] FCAFC 105 at [22] (Ferdinands v Burns) (Cheeseman, Goodman and McEvoy JJ).
A decision to refuse to accept documents for filing is amenable to review under the Judiciary Act
As an exercise of administrative power, a Registrar’s decision to refuse to accept documents for filing is amenable to administrative review: Ferdinands v Burns at [25]. A Registrar exercising power under r 2.26 is an officer of the Commonwealth for the purposes of the jurisdiction conferred by s 39B(1) of the Judiciary Act: Luck at [24]; Ferdinands v Burns at [62].
Accordingly, the Court has jurisdiction to determine the applicant’s originating applications brought under s 39B(1) of the Judiciary Act, but it should be kept in mind that all remedies that may be granted against officers of the Commonwealth pursuant to s 39B(1) of the Judiciary Actare discretionary.
The approach to review of a Registrar’s decision under r 2.26
In Luck Wheelahan J said at [33]-[34], and I agree:
As Colvin J observed in AMB19 v Minister for Home Affairs [2020] FCA 439 at [61], the registry of any court acts under the administrative direction of its judges. In this Court, that finds reflection in r 1.37, which provides that the Court may direct a Registrar to do, or not to do, an act or thing. It also finds reflection in r 3.04, under which a person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do. In Cristovao v Registrar Scott [2013] FCAFC 92, the Full Court (North, Siopis and McKerracher JJ) noted at [17] that r 3.04 was the most obvious avenue for review of a decision of a Registrar not to accept a document for filing, and at [38] described the process under r 3.04 as involving a full review. The power under r 3.04 was exercised by Stewart J in DOB18 v Ng [2019] FCA 1575 to direct a Registrar to accept a document for filing. The powers under rr 1.37 and 3.04 were exercised by Horan J in Sayed v Salvation Army Housing [2023] FCA 1298 to direct a Registrar to accept a document for filing on the ground that it was in the interests of the administration of justice to do so. Horan J found it unnecessary in that case to determine whether the Registrar’s decision not to accept the documents involved any error: see at [53]. See also Re Pickering [2009] FCA 809 at [16] (Barker J) in relation to the corresponding provision of the former rules; MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197 at [8] (Logan J); and Somasundaram v Luxton [2020] FCA 1076 at [16] (Murphy J).
Returning to judicial review, in light of the control that judges may exercise over the filing of documents in the Court, I consider that it would be an unusual case where a discretionary remedy was given upon judicial review of a Registrar’s decision not to accept documents for filing where the judge seized of the matter upon judicial review formed a firm view that the documents were on their face an abuse of process of the Court, or frivolous, or vexatious such that the Registrar was correct in not accepting them for filing. In many cases, judicial efficiency might result in a focus on the character of the documents themselves as a dispositive issue going to the grant of relief: see, in this respect, Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [49] (Barker, Banks-Smith and Colvin JJ).
CONSIDERATION
No reviewable error has been shown in relation to the state of satisfaction of the Registrars in deciding not to accept for filing:
(a)the rejected SCV documents because the Court has no jurisdiction or power to issue an injunction requiring the Chief Justice of the Supreme Court of Victoria to accept documents sought to be filed by the applicant; and
(b)the rejected CIA documents and the rejected AG documents because they amounted to an abuse of process.
But even if I was satisfied that there was some error by a Registrar, in the circumstances of the present case I would not grant the relief the applicant seeks.
Each of the three proposed proceedings that the Registrars rejected for filing was unquestionably, on the face of the documents, an abuse of process and it was appropriate that they were rejected. I will not address each and every argument the applicant made as enough public resources have already been spent on this matter. I deal with the applicant’s main arguments below.
First, the applicant’s assertion that the decisions to reject the relevant documents for filing is somehow an abrogation of the Court’s duty to hear justiciable matters only has to be stated to appreciate its lack of force. People, of course, have a right to have their civil disputes decided in a fair hearing before a court or tribunal. But the purpose of r 2.26 is to protect the procedures of this Court from abuse by empowering a Registrar to reject documents lodged for filing which, on their face, would be an abuse of court process or frivolous or vexatious: Luck at [36]. Here, the difficulty for the applicant is that the rejected documents allege frivolous and groundless claims, and rejecting their filing does not impermissibly cut across his right to have legitimate claims heard by the Court; it is not somehow an abrogation of the Court’s duty to hear justiciable matters. For the same reason, the applicant’s assertion that the decisions not to accept the rejected documents for filing impermissibly cuts across his right to a judicial remedy under the ICCPR has no merit.
Second, the same can be said about the applicant’s contention that the Registrar’s decisions to refuse to accept the rejected documents for filing is a crime under the Privacy Act.
In reliance on s 12B(2) of the Privacy Act, which refers to the ICCPR, the applicant’s argument read various Privacy Act provisions as if the text included various “rights” set out in the ICCPR. For example, he submitted that s 66(1) of the Privacy Act has effect as if it reads that:
A federal court contravenes that subsection if:
(a)the federal court is requested by an individual to do something required for giving effect to a right or freedom recognised in the ICCPR; and,
(b) the federal court refuses or fails to do so.
The applicant then argued that by refusing to accept his documents for filing, the Registrar breached that provision, as well as breaching s 66(1AA) which deals with systemic breaches of s 66(1).
In fact s 66(1) provides:
A person contravenes this subsection if:
(a)the person is required to give information, answer a question or produce a document or record under this Act; and
(b) the person refuses or fails to do so.
The applicant’s argument reflects a fundamental misunderstanding of the effect of s 12B of the Privacy Act, which is concerned with ensuring that there is a Constitutional basis for the operation of the Act. It does not operate to alter the meaning of the text of the Act as the applicant proposed. The Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 provides that “Clause 12B is intended to ensure that the Act is given the widest possible operation consistent with Commonwealth constitutional legislative power.”
Third, the applicant’s contention that r 2.26 of the Rules is void for inconsistency with ancient Imperial legislation reeks of the growing tendency for self-represented litigants to rely on ancient legislation in support of submissions that are blatantly unsustainable under Australian law: see generally Hobbs H, Young S, and McIntyre J, The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand, (2024) 47(1) UNSW Law Journal 309.
The applicant contended that Imperial legislation such as the Liberty of Subject Act 1354, the Observance of Due Process of Law Act 1368 and the Habeas Corpus Act 1640 apply in modern Australia, and that they render r 2.26 void and otherwise render the decision to reject his documents for filing unlawful. It can be accepted that the Habeas Corpus Act 1640 has continuing significance. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [155], Gageler J (as his Honour then was) said:
In Re Bolton, Brennan J specifically identified the Habeas Corpus Act 1679, as extended by the Habeas Corpus Act 1816, as amongst the ancient statutes which remain of undiminished significance within our contemporary constitutional structure. Brennan J might equally have identified the Petition of Right 1627 (which declared in substance that orders of the monarch were not sufficient justification for the imprisonment of his subjects) and the Habeas Corpus Act 1640 (which provided that anyone imprisoned by command of the King or his Council or any of its members without cause was to have a writ of habeas corpus on demand to the judges of the King's Bench or the Common Pleas).
But the writ of habeas corpus to which Gageler J’s observations were directed is concerned with the legality of continuing imprisonment. This case does not involve any question of imprisonment and habeas corpus has no bearing on the Registrar’s decisions to refuse to accept the rejected documents for filing. Further, assuming that the other Imperial statutes on which the applicant relied continue to apply in modern Australia (itself an optimistic assumption given that any inconsistency between Australian legislation and Imperial legislation resolves in favour of the Australian law: Australia Act 1986 (Cth) s 3(2)), they do no more than require due process in certain situations, none of which are relevant to the present case.
Fourth, the applicant’s contention that the Registrars failed to give reasons for rejecting the documents for filing is just wrong. As extracted above, reasons were provided in respect of each rejection decision, and the applicant did not contend that those reasons were somehow inadequate.
Fifth, there is no force in the applicant’s argument that an examination of the rejected AG documents and the NACC proceeding documents shows that no reasonable person could reject the AG proceeding documents on grounds that the proposed proceeding is “without substance, groundless and fanciful, and both frivolous and vexatious”, but not also reject the NACC proceeding documents. That is not the case. The NACC proceeding is a relatively confined proceeding seeking judicial review of a decision under the Freedom of Information Act1982 (Cth) in which the applicant seeks production of one document. That stands in contrast to the failure to articulate any reasonable cause of action in the AG proceeding, coupled with sweeping and fanciful proposed remedies.
Sixth, I do not accept the applicant’s contention that the Registrars impermissibly made substantive judgments in respect of the rejected documents. A Registrar does not, when refusing to accept an originating document for filing under r 2.26, make any substantive judgment about the underlying merit of the claims in the proposed proceeding. The Registrar is instead ensuring compliance with procedural requirements, by refusing to accept for filing documents which on their face are frivolous or vexatious or would be an abuse of the Court’s process.
Here, it is plain on the face of the documents that the applicant’s proposed proceedings are groundless, frivolous and vexatious, and would be an abuse of the Court’s process:
(a)as to the proposed SCV proceeding, the Chief Justice of the Supreme Court of Victoria is plainly not a Commonwealth entity and there is no basis upon which this Court could have jurisdiction to injunct the Chief Justice of the Supreme Court not to refuse to seal originating process sought to be filed by the applicant in that Court;
(b)as to the proposed CIA proceeding, the rejected CIA documents do not disclose a cause of action in relation to which the Court might adjudicate. The originating application does not detail any cause of action or a basis for the remedies sought; the applicant’s claims are not supported by anything on affidavit and the originating process does not comply with r 8.05(4). The originating application does not disclose how the RPSP Act could provide the applicant with a cause of action when there is no allegation that he is an “authorised person” under that Act, and it provides no basis for his equitable claim. In his written submissions the applicant conceded that he had “not disclosed the grounds of his claims”; and
(c)as to the proposed AG proceeding, the only support for the applicant’s claims is found in his supporting affidavit, which states that the exhibited legislation and ICCPR are “false documents” (whatever that means) and the applicant’s “suspicion” that those documents “were produced under warrant issued” by the Attorney-General or his agents. It does not disclose any basis for the allegation that publicly available legislation was “produced under warrant issued” by the Attorney-General, and that allegation is the only basis for the sweeping relief regarding warrants that is sought. The proposed relief itself indicates the frivolous and vexatious nature of the claims as the application seeks orders to void all warrants issued by the Attorney-General that impact upon the rights of the applicant (without identifying any such warrants that have been issued); an order to “permanently vacate” the office of the Attorney-General (without identifying a basis or power for such an order); and a permanent injunction to require the Attorney-General not to issue warrants that impact upon the rights of the applicant (without identifying a basis or power for such an order).
Seventh, there is no force in the applicant’s submission that r 31.05 necessarily means power to refuse documents under r 2.26 is limited such that refusal cannot be on grounds of lack of competency. No authority was cited for that proposition. Rule 31.05(1) provides that a respondent who objects to the competency of an application must, within 14 days of being served with the application, file a notice of objection to competency. Costs consequences flow from failure to file a notice of objection to competency: r 31.05(4). It can be seen that r 31.05 regulates procedure after a proceeding has been commenced. This reflects a different concern to that of r 2.26, which is about the powers of a Registrar to refuse documents for filing. This power includes preventing the commencement of an incompetent proceeding in the first place, if that incompetence is evident on the face of the document and it renders the proceeding frivolous or vexatious. That is not inconsistent with the operation r 31.05 after proceedings have been commenced.
For the foregoing reasons I refuse the application for orders to require that the rejected SCV documents, the rejected CIA documents and the rejected AG documents be accepted for filing.
PERMANENT STAY
I also consider that this proceeding should be permanently stayed as an abuse of process. I accept that there is a heavy onus before a court is satisfied that there is an abuse of process, and the power to grant a permanent stay of a proceeding is one to be exercised only in exceptional circumstances: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ and 542 per Deane J.
While the step of permanently staying this proceeding is an extreme measure, this is an extreme case in which judicial economy and efficiency is undermined by repeated attempts at judicial review applications on manifestly untenable grounds. The result of proceedings such as this is that “other litigants are left in the queue awaiting justice”: UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [45] (Kiefel CJ, Bell and Keane JJ). As noted by the Full Court in Storry v Parkyn(Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 at [6]-[7] (Lee, Feutrill and Jackman JJ):
The stark contemporary reality is that there are an increasing number of controversies being brought before the Court and a finite number of judges able to manage and determine those matters. Every day a judge of the Court is required to deal with a vexatious proceeding is another day the judge is prevented from using the judicial power of the Commonwealth to quell a real dispute between parties who have invoked the Court’s jurisdiction.
The importance of s 37M(3) of the FCA Act in the work of the Court cannot be overstated. It requires judges of the Court to interpret and apply any power conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: see also s 37M(1). A fundamental aspect of doing more than paying lip service to these case management objectives is taking the necessary steps to ensure that the whole of the Court’s business is managed efficiently. The aim of the overarching purpose provisions is undermined if the Court is passive and refrains from taking active steps to prevent the abuse of the Court’s processes when such abuses become manifest. This involves judges taking a proactive role, where appropriate, in identifying circumstances where the processes of the Court are being repeatedly or frequently abused by a pattern of apparently vexatious proceedings.
In a real sense this proceeding, which seeks to resuscitate three earlier attempted proceedings, impairs the integrity of the Court and consumes its limited resources. It is appropriate to take a proactive approach to the applicant’s abuse of the Court’s processes.
CONCLUSION
I have ordered that this proceeding be permanently stayed as an abuse of process.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 28 March 2025
0