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

1. The Registry be directed not to accept the Interlocutory Application for joinder of the Commonwealth of Australia and the State of New South Wales and accompanying affidavit of the applicant affirmed 21 August 2024 pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth).
2. Pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), the Registrar remove the Originating Application in these proceedings filed on 18 July 2024 from the Court file and replace it with a redacted copy, with redactions applied by the Registrar to Interlocutory orders 2-5 pursuant to r 2.29(1) of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEEDHAM J: 1 On 14 July 2024, the applicant (who in these and other proceedings in the Court goes by the pseudonym AZO24) filed an Originating Application for Judicial Review which was accepted for filing on 18 July 2024 and docketed to me. 2 The Originating Application seeks judicial review of a decision of Registrar Stewart, the second respondent, to refuse to accept an Interlocutory Application and affidavit dated on 4 July 2024 (together, the Documents) for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules). The Registrar filed a Submitting Notice on 23 July 2024. On 31 July 2024, I made an order dispensing with service on the first respondent. 3 On review of the Originating Application, it appeared to me that Interlocutory Orders 2, 3, and 4 of the Originating Application were, on their face, an abuse of process. The Interlocutory Orders seek: 2. An order that order number 8 by J Kennett on 21 June 2024 in the primary proceedings be suspended (or stayed) pending the outcome of this review in accordance with s15(1)(b) of the ADJR Act. [that order provides: Order 7 has effect until: a. 19 July 2024; or b. If the applicant applies for special leave to appeal from the orders made in AZO24 v Commonwealth of Australia [2024] FCA 555 or otherwise applies to have those orders set aside, until 2 weeks from the determination of that application] 3. An order suspending (or staying) the interlocutory orders numbered 2, 3, 4, 5 made on 21 June 2024 by J Kennett in the primary proceedings, pending the determination of this review in accordance with s15(1)(b) of the ADJR Act. [those orders are timetabling orders relating to the filing of any interlocutory applications to be heard before Kennett J in proceedings NSD1036/2023] 4. An order to stay the whole of the primary proceedings NSD1036/2023, except for the return of subpoenas issued, until the outcome of the review as it affects a decision relating to the disqualification of the presiding Judge, therefore the execution of the primary proceeding are affected under the Decision. Pursuant to s15(1)(b) of the Administrative Decision (Judicial Review) Act 1977 and/or r. 36.08(2) of the FCR. [NSD1036/2023 is the proceedings before Kennett J] 4 As I had formed that preliminary view, I made orders on 7 August 2024 that the applicant provide written submissions as to why the Interlocutory Orders should not be redacted pursuant to r 2.29(1) of the Rules. 5 Also on 7 August 2024, I made orders listing the Originating Application for hearing on 28 August 2024. 6 The applicant provided an email in response to the orders on 7 August 2024, seemingly by way of submissions although not explicitly expressed to be such. In that email, she opposed "removal" of Interlocutory Orders 3 and 4, and agreed that Interlocutory Order 2 can be removed, or otherwise sought to amend Interlocutory Order 2 "to suspend the orders made [by Kennett J] on 25 July 2024 requiring me to file submissions and evidence by 20 August [2024] and suspending the hearing proposed for 3 September [2024]". 7 The applicant further submitted:- I oppose removal of my proposed order 4. This is an order you are able to make pursuant to s15(1)b and (2) of the ADJR Act and r. 36.08(3) of the FCR regardless of whether the primary judge in NSD1036/2023 has previously refused an application of a similar kind. Whilst this is a judicial review and not an appeal, the above mentioned rule should be considered in light of the fact that the judicial review is about accepting an application for filing to re-open the leave to appeal and that appeal affects disqualification of the primary judge and procedures in the timing of filing certain applications. The whole point of the leave to appeal, other than disqualification of the judge is also about affording me proper procedures in case management, which includes timing of when and how evidence is to be filed and when documents are to be produced by the respondents. At the present I am being coerced and bullied into submitting more than I need to so early in proceedings and the respondents are given the permission to do nothing. There is a lack of procedural fairness which is why I am seeking to re-open the leave to appeal. If my proceedings are not suspended prior to 20 August when I am due to file evidence in response and certainly prior to the hearing on 3 September to summarily dismiss or strike out my proceedings, then the relief I seek in the application to re-open the leave to appeal is lost. And my proceedings NSD1036/2023 may be dismissed prior to that application (or even this judicial review) being heard and determined. Then they become redundant and there would be questions over what the point of s15 in the ADJR Act and r. 36.08(2) and (3) are in the FCR if they can't be utilised in this instance, not to mention facility of s23 of the FCOAA. 8 As can be seen from the above, Interlocutory Orders 2 (in its original form, and by way of the requested amendment), 3, and 4 of the Originating Application relate not to the decision of Registrar Stewart to refuse to accept the Documents for filing, but are effectively orders seeking to suspend or stay orders made by Kennett J in proceedings NSD1036/2023 AZO24 v Commonwealth of Australia & anor. The second respondent in those proceedings is the State of New South Wales. 9 I have not yet made the orders redacting the Interlocutory Orders, intending to do so at the hearing of the matter given the proximity of the hearing. However, the applicant pressed for me by email to make the Interlocutory Orders ahead of the hearing. In reply to the applicant's emails, on 21 August 2024 the Registry informed the applicant that one of the bases on which I considered it was not appropriate to make those orders was that they would affect the respondents to the proceedings before Kennett J. Those respondents are (properly) not parties to the Originating Application. 10 In response to that email, the applicant now seeks, by email to the Registrar on 22 August 2024, to join the Commonwealth of Australia and the State of New South Wales to these proceedings. In that email, the applicant attached, for filing, an Interlocutory Application for Joinder and accompanying affidavit affirmed 21 August 2024. The Application for Joinder requires me to consider and determine whether it is appropriate to join those parties, and part of that decision requires me to determine whether the Interlocutory Orders are an abuse of process. Accordingly, these two issues (joinder, and whether to redact the Interlocutory Orders) need to be determined as a preliminary issue. I note that the applicant has had the opportunity to make submissions, as set out above. 11 In refusing to accept the Documents for filing in the decision under review in the Originating Application, Registrar Stewart acted under r 2.26 of the Rules. That rule provides: 2.26 Refusal 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. 12 The Documents sought orders which are closely intertwined with the Interlocutory Orders sought in Originating Application in these proceedings, in that they seek to stay the appeal from the proceedings before Kennett J, re-open the leave to appeal proceedings which was determined by Abraham J (see AZO24 v Commonwealth of Australia [2024] FCA 555), and generally stay orders made by Kennett J on 21 June 2024 and 28 June 2024. 13 On 20 March 2024, Kennett J ordered in NSD1036/2023 that "[n]o document be accepted for filing in this proceeding without leave granted by a Judge (See r 2.27(f) of the Federal Court Rules 2011 (Cth)". While the Originating Application, including the Interlocutory Orders, were filed in a new Originating Application, and not in the proceedings before Kennett J, Interlocutory Orders 2, 3 and 4 are clearly orders which should have been sought before Kennett J in those proceedings, and if they had been, would require such leave. 14 In the recent decision of the Full Court of the Federal Court of Australia, Ferdinands v Registrar Burns [2024] FCAFC 105, Cheeseman, Goodman, and McEvoy JJ noted continued attempts at filing documents without first seeking leave to do so as part of the history of an applicant prior to considering whether to make a vexatious litigant order pursuant to s 37AO(2)(b) of the Federal Court Act 1976 (Cth) (see paragraphs [16], [105], and [150]). While it is not suggested that the applicant here is at that point, it is notable that the Interlocutory Orders are sought in proceedings which are ostensibly proceedings for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and to which only Registrar Stewart is the proper respondent. 15 A concomitant power to 2.26 is given to the Court in r 2.29 of the Rules. That rule provides: 2.29 Documents on a Court file - removal, redaction and storage (1) A document on a Court file will be removed from the Court file and replaced with a redacted copy if: (a) the Court has ordered that the document be removed and replaced: (i) on its own initiative; or (ii) on the application of a party under rule 6.01 or subrule 16.21(2); or (b) for an affidavit - the Court has ordered that the affidavit be removed and replaced with a redacted copy: (i) on its own initiative; or (ii) on the application of a party under subrule 29.03(2); or (c) the Court is satisfied that: (i) any part of the document is otherwise an abuse of process of the Court; and (ii) it is reasonably practicable for that part of the document to be redacted. 16 Rule 2.29 is, unlike r 2.26, a power of the Court and thus a judicial power. It is available to the Court, on its own initiative, to make such an order once documents have been accepted for filing. 17 I am of the view that given that the Interlocutory Orders appear on their face to be an abuse of process, it would not be appropriate to join the Commonwealth of Australia and the State of New South Wales to the Originating Process, as sought by the applicant. 18 Accordingly, pursuant to r 2.27(e), I direct that the Registry not accept the Application for Joinder, and the accompanying affidavit, for filing. 19 I formed the view that Interlocutory Orders 2-4 appear on their face to be an abuse of process because these orders seek to have me determine questions which should have been brought before Kennett J, and which would, if sought to be filed in those proceedings, require his Honour's leave. 20 Given that the applicant is agitating for orders 2-4 to be made, and they are on their face an abuse of the processes of this Court, I will order that Interlocutory Orders 2-4 be redacted in accordance with r 2.29(a)(i) on the basis that I am satisfied that that part of the document is an abuse of process, after hearing from the applicant by way of her email of 7 August 2024. In addition, on my own initiative, I will order that Interlocutory Order 5 be redacted in accordance with r 2.29(a)(i). That order seeks: 5. An order that the order for costs made in the 28 May 2024 order number 4 by J Abraham in the judgement of the leave to appeal NSD325/2024 be suspended or stayed pending the outcome of this review in accordance with s15(1)(b) of the ADJR Act. 21 The applicant has been unsuccessful in an appeal to Abraham J and any stay applications, as sought in Interlocutory Order 5, should have been brought before her Honour, or at least in accordance with the provisions of r 36.08 of the Rules. 22 In each case, in relation to Interlocutory Orders 2-5, I am satisfied that: (1) The application to join the Commonwealth of Australia, and the State of New South Wales, to these proceedings, are an abuse of process, and (2) Interlocutory Orders 2-5 are likewise an abuse of process, and it is reasonably practicable for that part of the document to be redacted. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.