Wu v Registrar Donovan

Case [2025] FCA 647

FEDERAL COURT OF AUSTRALIA

Wu v Registrar Donovan [2025] FCA 647

File number: NSD 395 of 2025
Judgment of: MARKOVIC J
Date of judgment: 18 June 2025
Catchwords: ADMINISTRATIVE LAW – application for judicial review of Registrar’s decision to refuse to accept a document for filing – document an abuse of process or is frivolous or vexatious on its face – no grounds for review established – application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) s 37M(4) Federal Court Rules2011 (Cth) rr 2.26, 39.05
Cases cited:

AMO25 v Administrative Review Tribunal (No 2) [2025] FCA 376

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56

Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056

Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 37
Date of last submission: 30 May 2025 (Applicant)
The Respondent did not provide submissions
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: The Respondent filed a submitting notice

ORDERS

NSD 395 of 2025
BETWEEN:

MR JIANHUA WU

Applicant
AND:

REGISTRAR HELEN DONOVAN, FEDERAL COURT OF AUSTRALIA

Respondent

ORDER MADE BY:

MARKOVIC J

DATE OF ORDER:

18 JUNE 2025

THE COURT ORDERS THAT:

1.The applicant’s originating application for judicial review filed on 20 March 2025 be dismissed.

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

MARKOVIC J:

  1. On 6 March 2025 the applicant, Jianhua Wu lodged an unsigned interlocutory application dated 7 February 2025 in proceeding NSD 1449 of 2023 for filing.  The interlocutory application was addressed to Kennett J and in it Mr Wu stated (as written):

    I, the Applicant, Jianhua Wu, seeks clarification of the judgements delivered by this Court on 6 December 2024 (December 6 Judgement) in relation to the matter above.

    About the Application

    1.This is an application seeking clarification of the December 6 Judgement.

    2.This is also an application brought forward as per Rule 39.05 of the Federal Court Rule 2011.

    Extension of Time

    3.Should the Court find this application is filed outside time limit, I seek the Court’s leave to set aside that time limit and to accept this application.

  2. Thereafter in his interlocutory application Mr Wu sought “clarification” on aspects of the “December 6 Judgement” which is a reference to orders made in proceeding NSD 1449 of 2023 on 6 December 2024: see Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404. Mr Wu set out those matters on which he seeks clarification in Wu v DSMJ. 

  3. In the interlocutory application Mr Wu seeks the following by way of relief (as written):

    40.      Make a declaration that:

    The Federal Court of Australia…

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Wu v Registrar Donovan [2025] FCA 647
Case
[2025] FCA 647
Decision Date

CaseChat Overview and Summary

The case of Wu v Registrar Donovan involves Mr Wu, the applicant, seeking judicial review of the Registrar's decision to refuse to accept a document for filing. The matter was heard in the Federal Court of Australia. Mr Wu sought to challenge the Registrar's decision by lodging an interlocutory application under Rule 39.05 of the Federal Court Rules 2011, which pertains to varying or setting aside a judgment or order. Mr Wu's application was dismissed by the Registrar, and he now sought judicial review of that decision.

The primary legal issue before the court was whether the Registrar's decision to refuse to accept the interlocutory application for filing was lawful and whether it constituted an abuse of process. The court had to determine if Mr Wu's application was frivolous or vexatious on its face, and whether it had grounds for review.

The court considered the nature of the interlocutory application and the fact that Mr Wu had already exhausted his rights of appeal in the Court. The court noted that challenging a decision of a judge exercising appellate jurisdiction in this Court when the appellate jurisdiction had been exhausted amounted to an abuse of process. The court found that the Registrar was correct in refusing the interlocutory application for filing. Mr Wu's attempt to invoke Rule 39.05 to overcome the exhaustion of appellate jurisdiction was unsuccessful, as Rule 39.05 did not provide grounds for the relief sought in this context. The court concluded that Mr Wu had not established any grounds for judicial review.

The court dismissed Mr Wu's application for judicial review, stating that there should be no order as to costs. The Registrar's decision to refuse to accept the interlocutory application for filing was upheld as lawful and reasonable.

The court's decision was grounded in the principles that challenging a decision of a judge exercising appellate jurisdiction after exhausting appellate rights constitutes an abuse of process, and that the Registrar's refusal to accept the interlocutory application was correct. The court found no evidence of bias or error in the Registrar's decision, and therefore dismissed Mr Wu's application.

Orders

Orders of the court

1. The applicant’s originating application for judicial review filed on 20 March 2025 be dismissed.

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.

Background

Background to the litigation

Registrar Donovan has filed a submitting appearance. Mr Wu informed the Court that he was content for his application to be determined on the papers. BACKGROUND The following background is substantially taken from the findings made in Wu v DSMJ. On or about 24 December 2021 DSMJ Pty Ltd dismissed Mr Wu from his employment. On 10 April 2022 Mr Wu filed an application in the Fair Work Division of the Federal Circuit and Family Court of Australia (Circuit Court). On 10 December 2022 he amended his claim. He sought compensation and the imposition of pecuniary penalties against the respondents in that proceeding, DSMJ, Joe Colon, Megan Farrell, Liong Lim and Rohan Tronson. On 21 November 2023 the Circuit Court made a declaration that DSMJ was involved in a contravention of s 45 of the Fair Work Act 2009 (Cth) in that it failed to make a copy of the Professional Employees Award 2020 available to Mr Wu and made orders for the filing of evidence and submissions in relation to penalty for that contravention. The Circuit Court dismissed all other claims. Mr Wu appealed to this Court. The hearing of the appeal took place on 16, 17 and 19 September 2024. On 6 December 2024 the Court made the following orders:1.Leave to appeal be granted.2.The appeal be dismissed.3.Any party that wishes to seek an order for costs is to file written submissions of no more than five pages, together with any evidence on which it wishes to rely on the question of costs, within 14 days.4.If submissions are filed pursuant to order 3, any other party may file responsive submissions of no more than five pages, together with any evidence on which it wishes to rely, within a further 14 days.5.The question of costs be dealt with on the papers if an order for costs is sought in accordance with order 3. MR WU’S APPLICATION Mr Wu’s application for judicial review provides under the heading “details of claim” (as written):The Applicant is aggrieved by the decision because:1.Rules 39.05 of the Federal Court Rules 2011 (Rules) ) provides the Court the power to varying or setting aside judgement or order after it has been entered. Justice Kennett has not made any decision under or concerning Rules 39.05. And he did not say he refused to vary or setting aside judgment or order which he delivered on 6 December 2024 as per Rules 39.05.2.Registrar Helen Donovan did not consider, or slipped, Rules 39.05 when making the decision dated 17 March 2025.3.Refusal to accept the IA constitutes the Court failed to offer me procedural fairness where the Court accepted and heard application under Rules 39.05 in other matters, and deprived me the opportunity to seek the Courts making orders per Rules 39.05.4.Failure to hear the IA constitutes the Court failed to offer me judicial fairness. Mr Wu then sets out his grounds of review as follows (as written):1.Seek clarification of published reasons or/and orders, where there is ambiguous or meanings unclear, is a standard and a proper procedure; further,2.Rule 39.05 of the Federal Court Rules 2011 says the Court may vary or set aside a judgement or order after it has been entered for the various outlined factors.3.An application pursuit varying or setting aside judgement or order as per Rule 39.05 of the Federal Court Rules 2011 is a common practice at Federal Court of Australia. I name a few of the recent matters which considered that Rule, or varied judgements or orders because of a power from that rule:a.Tucker v McKee (No 2) [2022] FCA 342;b.BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 106;c.O'Neill v Deputy Commissioner of Taxation [2021] FCA 322d.Larmar Services Pty Ltd v Commissioner of Taxation [2023] FCA 13664.At [1] of the IA, I stated expressly that the application seeks clarification from the Court.5.Paragraphs [4] – [32] of the IA explicitly seeks Justice Kennett’s clarification to the judgement he delivered on 6 December 2024 (December 6 Judgement) in the matter NSD 1449/2023, or facts that he might have accidentally slipped or omitted.6.At [2] of the IA, I stated expressly that the application brought forward as per Rule 39.05.7.Paragraphs [34]–[42] of the IA seeks varying or setting aside judgement or order Justice Kennett delivered on 6 December 2024 as per rule 39.05 of the Federal Court Rules 2011.8.Paragraphs [33] of the IA seeks clarification if Grounds 9 and 10 were addressed for it was unclear from the published reasons.9.Registrar statements that the IA seeks the Court to reconsider the evidence previously presented was incorrect, at least was inaccurate. At circumstance, the IA seeks clarification from Justice Kennett concerning the facts he might have slipped or omitted.10.Registrar’s statements that the IA seeks the Court to reconsider the reasons provided by Justice Kennett was incorrect. At circumstance, the IA seeks clarification from Justice Kennett where published reasons are unclear.11.Registrar statements “Justice Kennett’s order was a final order in the proceedings. Any challenge to those findings is constitutes an appeal” are incorrect, or irrelevant, or misleading. Rule 39.05 of the Federal Court Rules 2011 (Rules) provides the Court the power to varying or setting aside judgement or order after it has been entered. Justice Kennett has not made any decision under or concerning Rules 39.05. And he did not say he refused to vary or setting aside judgment or order which he delivered on 6 December 2024 as per Rules 39.05.12.The IA was not an appeal. Where it seeks varying or setting aside judgement or order which Justice Kennett delivered on 6 December 2024, those were made as per Rules 39.05, hence, the IA was lodged, and a proper court procedure. An appeal is not must for the orders that I sought (Justice Kennett can set aside the orders he could not make).13.Registrar Helen Donovan did not consider, or slipped, Rules 39.05 when making the decision dated 17 March 2025.14.Registrar Helen Donovan did not have power to decide whether the orders that I sought could be varied as per Rules 39.05.15.Refusal to accept the IA constitutes the Court failed to offer me procedural fairness where the Court accepted and heard application under Rules 39.05 in other matters, and deprived me the opportunity to seek the Courts making orders per Rules 39.05.16.Failure to hear the IA constitutes the Court failed to offer me judicial fairness.17.Additionally, the IA is a necessary for avoiding a possible appeal to High Court of Australia. Where the IA is not heard, an appeal to High Court of Australia would be unavoidable. The High Court of Australia has limited resource. The FCA is created to alleviate the burden of the High Court of Australia, or to assist the High Court of Australia. Refusal to accept and to hear the IA constates a failure of carrying out the FCA’s public duties.18.Registrar was incorrect in saying the IA was not signed. LEGAL PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Contrary to Mr Wu’s submission, that conclusion does not result in “judicial bias against [him]”. Mr Wu gives no evidence of the actual or apprehended bias said to arise by reason of the decision to refuse to accept the interlocutory application for filing or by refusing to set aside that decision. That these are decisions not in Mr Wu’s favour is not sufficient to establish any bias. CONCLUSION Mr Wu has not made out any of his grounds of judicial review. His application should be dismissed. As the Registrar filed a submitting notice there should be no order as to costs. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

Mr Wu concludes by submitting that refusing to accept the interlocutory application for filing and refusing to set aside the Registrar’s decision would result in judicial bias against him.CONSIDERATION By the interlocutory application, Mr Wu seeks to challenge the decision in Wu v DSMJ which is a decision of a judge of this Court exercising appellate jurisdiction: see s 24(1)(d) and s 25(1AA) of the Federal Court Act. An appeal from a judgment of the Court constituted by a single judge, as was the case here, lies to the High Court, subject to a grant of special leave to appeal: see s 33(4) of the Federal Court Act. Mr Wu acknowledges that fact in his submissions. It is apparent that Mr Wu has exhausted his rights of appeal in this Court. That being so, an attempt to challenge in this Court a decision of a judge of the Court exercising appellate jurisdiction is an abuse of process: see Kitoko at [44]. The Registrar was correct to refuse the interlocutory application for filing. Mr Wu seeks to overcome the fact that he has exhausted the appellate jurisdiction of this Court by attempting to invoke r 39.05 of the Rules. Grounds 1 to 14 of Mr Wu’s judicial review application allege, in effect, that the Registrar should have permitted the filing of the interlocutory application because it was an application made pursuant to r 39.05 of the Rules to correct the judgment because of a slip or omission, that the Registrar did not consider that it was such an application and she did not have power to decide whether the orders could be varied pursuant to r 39.05 of the Rules. Rule 39.05 of the Rules provides: The Court may vary or set aside a judgment or order after it has been entered if:(a) it was made in the absence of a party; or (b)it was obtained by fraud; or (c)it is interlocutory; or (d)it is an injunction or for the appointment of a receiver; or (e)it does not reflect the intention of the Court; or (f)the party in whose favour it was made consents; or (g)there is a clerical mistake in a judgment or order; or (h)there is an error arising in a judgment or order from an accidental slip or omission. Mr Wu relies in particular on r 39.05(h) of the Rules, which is referred to colloquially as the “slip rule”. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 a Full Court of this Court (Bromberg, Rangiah and Bromwich JJ) said the following about r 39.05 at [12]:Rule 39.05 of the Federal Court Rules allows the Court to vary or set aside a judgment or order after it has been entered if, relevantly, the judgment or order does not reflect the intention of the Court, or there is an error arising in a judgment or order from an accidental slip or omission. A “judgment” is defined in s 4 of the Federal Court of Australia Act 1976 (Cth), relevantly, as a “judgment, decree or order”. A “judgment” is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a “judgment”:…