Kant v Principal Registrar, Federal Court of Australia [2025] FCA 1622

The Applicant agreed to this application being determined on the papers.

1. For the following reasons, that application is refused. The Applicant's grounds of challenge to the Registrar's decision are not made out, and indeed the Registrar's decision is plainly correct.
2. In fact, the originating application here seeks to resuscitate arguments that were described by Murphy J as "untenable" in previous proceedings, and his Honour made orders in those proceedings that the Applicant's application to require documents to be accepted for filing should be permanently stayed as an abuse of process. The same orders should be made here.
3. Applicant's materials: The Applicant relies for this application on an affidavit affirmed by him on 13 November 2025, and he has also filed an affidavit of service affirmed by him on the same date. He has filed written submissions dated 28 November 2025.

1. Applicant seeks to file documents: On 29 October 2025, the Applicant sought to file via eLodgment the originating application, the statement of claim, and the July affidavit. Those documents provide as follows.
2. Originating application: The originating application is brought against the Director of the United States Central Intelligence Agency (CIA Director), and the Australian Information Commissioner.
3. The Applicant seeks the following final relief against the CIA Director:
   1. ... An injunction requiring the [CIA Director] produce, to the Applicant, all records of information about the Applicant and/or his affairs that are in the possession, custody or power of the Central Intelligence Agency of the United States - under [s] 121(2) Regulatory Powers (Standard Provisions) Act 2014 [(Cth)]
   2. Alternatively ... An injunction requiring the [CIA Director] produce, to the Applicant, all records of information about the Applicant that are in the possession, custody or power of the Central Intelligence Agency of the United States - under [s] 121(2) Regulatory Powers (Standard Provisions) Act 2014
   3. Alternatively ... An injunction requiring the [CIA Director] produce, to the Applicant, all records of personal information about the Applicant that are in the possession, custody or power of the Central Intelligence Agency of the United States - under [s] 121(2) Regulatory Powers (Standard Provisions) Act 2014
   4. ... Ordinary damages in respect of arbitrary interference with the privacy of the Applicant by the Central Intelligence Agency of the United States - under [s] 12B(2) of the Privacy Act 1988 [(Cth)]
   5. ... Exemplary damages, in amount as the Court may deem to be appropriate in all of the circumstances, in respect of arbitrary interference with the privacy of the Applicant by the Central Intelligence Agency of the United States - under [s] 12B(2) of the Privacy Act 1988 [.]
4. The Applicant seeks injunctions against the Commissioner requiring the Commissioner to "do all of the things necessary to cause" the CIA Director to produce to the Applicant the materials that are sought in paras 1 to 3 of the originating application (see paras 6 to 8).
5. The Applicant also seeks interlocutory relief; relevantly, a direction permitting the originating application and accompanying documents to be served by postal mail.
6. Statement of claim: The Applicant's statement of claim sets out the following "Material Facts".
   • It is said that the CIA Director in and before 2020 collected information about the Applicant at locations not within the territorial limits of Australia, and in 2018 and since at locations otherwise than at locations not within the territorial limits of Australia (paras 24, 26).
   • It is said that the CIA Director arbitrarily collected information about the Applicant at locations not within the territorial limits of Australia, and in 2018 and since at locations otherwise than at locations not within the territorial limits of Australia (paras 25, 27).
   • It is said that, in April 2024, the Applicant requested the CIA Director provide him with access to information the CIA Director has about him (para 29). In May 2024, the Applicant requested the CIA Director provide him with access to information the CIA Director has about him and his affairs (para 31).
   • It is said that the CIA Director has not given the Applicant access to information about him (para 32). The CIA Director, in arbitrarily collecting information about the Applicant, "caused the Applicant to experience displeasure" (para 33).
   • It is said that the Applicant has requested the Commissioner to do "all of the things necessary" to cause the CIA Director to produce to the Applicant the information sought, and that the Commissioner has not complied with that request (paras 34-35).
7. The statement of claim sets out "Questions of law" (paras 37-44) and "Conclusions of law" (paras 45-63). In outline, the Applicant contends that the CIA Director has breached or acted in contravention of the Privacy Act 1988 (Cth), particularly ss 12B(2) and 15, and Australian Privacy Principles (APPs) 3.5 and 12.1. He contends that the Commissioner is in breach of APP 12 for as long as the Commissioner does not do all of the things necessary to cause the production to the Applicant of the information sought from the CIA.
8. July affidavit: The Applicant's July affidavit states that it is not practicable for him to serve the CIA Director personally.
9. Registrar refuses to accept documents for filing: On 30 October 2025, the Applicant received by email the Registrar's decision refusing to accept these three documents for filing, under r 2.26 of the Federal Court Rules 2011 (Cth).
   • The Registrar set out the effect of r 2.26 of the Rules, and its interpretation by White J in Ferdinands v Registrar Cridland [2021] FCA 592.
   • The Registrar then stated:

I have carefully considered the content of the documents as they are presently lodged, I have determined the Documents should not be accepted for filing. I am of the view that the Documents on the face are an abuse of process, frivolous and vexatious and inevitably destined to fail if it was to be accepted for filing.

• The Registrar stated that "[a]ny application seeking review of this decision can be done in compliance with rule 31.01 and 31.05 of the rules", and recommended that the Applicant seek legal advice prior to filing any further documents with the Court.

1. Application for judicial review of Registrar's decision: On 30 October 2025, the Applicant lodged an application for judicial review of the Registrar's decision. That application sets out the following grounds of review:
   1. The Federal Court refusing to hear the matter is so unreasonable that no reasonable person could so exercise a power conferred by law.
   2. The decision is made in error of jurisdiction and is otherwise contrary to law.
   3. The decision is not in accordance with [r] 2.26 Federal Court Rules 2011 [(Cth)].
   4. An irrelevant consideration was taken into account.
2. On 27 November 2025, the Registrar filed a notice, submitting to any order made by the Court in the proceeding, save as to costs.

1. Rules r 2.26: The Registrar's decision was made under r 2.26 of the Rules, which 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.

1. Review of refusal decisions - general principles: The principles for review of decisions made under r 2.26 are conveniently summarised by the Full Court in Ferdinands v Registrar Burns [2024] FCAFC 105 as follows.
   • Rule 2.26 does not confer judicial power: Ferdinands at [20], referring to Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [38] (the Court). A Registrar's decision is therefore subject to judicial review, whether under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth): Ferdinands at [62].
   • A proceeding will be "frivolous and vexatious" within r 2.26 if, among 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: Ferdinands at [22], summarising Ferdinands v Registrar Cridland [2022] FCAFC 80 at [27]- [30].
   • A decision under r 2.26, being administrative, does not determine substantively whether a claim must be dismissed because it is an abuse of process of the Court, or is frivolous or vexatious. Rather, r 2.26 expresses the administrative requirement that documents must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious: Ferdinands at [61].
   • A review by the Court of the Registrar's decision is confined to assessing whether the Registrar committed reviewable error, and is not a merits review or hearing de novo in relation to the substantive merits of the claims that are sought to be made in the documents that were rejected for filing: Ferdinands at [63].

No reviewable error in how Registrar applied Rules r 2.26

1. For the following reasons, there is no reviewable error in the Registrar's decision.
2. Registrar applied correct test in orthodox fashion: The Registrar applied the correct test for r 2.26, applying reasoning of White J at first instance that was expressly approved by the Full Court on appeal in Cridland (which was in turn approved by the Full Court in Ferdinands). Further, the Registrar's conclusion that the claims in the originating application and associated documents were frivolous and vexatious and inevitably destined to fail if those documents were accepted for filing, was well open on the face of the documents.
3. It is convenient to focus for these purposes on the relief sought in the originating application. If there is no basis for the relief sought in that document, it follows that the other documents may also be refused for filing under r 2.26.
   • The Applicant seeks to rely on s 121(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) to support the injunctions sought against the CIA Director and Commissioner. However, s 121 only empowers an "authorised person" to apply for an injunction. A person is an "authorised person" if an Act provides that the person is an authorised person for the purposes of particular provisions in the Regulatory Powers Act (see s 119(1), read with ss 12(1), 42(1) and 112(1)). Neither the originating application nor the statement of claim seek to articulate how the Applicant is an "authorised person", and it is difficult to see how he could be.
   • The Applicant seeks to rely on s 12B(2) of the Privacy Act as the source of the claim for damages against the CIA Director. Section 12B (which deals with the constitutional validity of the Privacy Act) provides that the Act also has the effect it would have if its operation in relation to "regulated entities" were expressly confined to an operation to give effect to various international instruments, including the International Covenant on Civil and Political Rights (s 12B(2)(a)). Section 12B does not support an argument that an Australian court could award damages against a foreign body politic for breach of an Australian Act. The provisions in the Privacy Act for awarding compensation or damages apply when (among other things) the Court has determined in proceedings brought under the Regulatory Powers Act that a person or body has contravened a civil penalty provision of the Privacy Act, or has committed an offence: see ss 25(1), 25A(1) and 80UA(1). Again, the Applicant has not articulated how these preconditions are met, and it is difficult to see how they could be.
4. The Applicant is claiming relief under these provisions, so it is essential that his claims at least articulate how the necessary preconditions are met. Contrary to the Applicant's submission, these defects are apparent on the face of the originating application.
5. There are other difficulties with the originating application. In so far as the Applicant relies on s 12B(2) of the Privacy Act, that provision does not affect the extraterritorial operation of that Act, which is dealt with in s 5B. Section 5B provides that the Privacy Act applies to extraterritorial acts or practices by an "agency"; or by an organisation, or small business operator, that has an Australian link (as defined in s 5B(2) and (3)). The CIA Director is not an "agency" as defined in s 6, and the CIA Director self-evidently does not have an Australian link. It is true that the Applicant contends that the Director of the CIA engaged in some conduct within the territorial limits of Australia, and also true that a "regulated entity" (to which the Privacy Act applies) includes a body politic (s 12B(1)(d)). However, this reference to "body politic" means a body politic in and of Australia, and would not include a foreign body politic (see Acts Interpretation Act 1901 (Cth) s 21(1)(b)). That interpretation is reinforced by the foreign state immunity legislation mentioned below. But these matters may be entering on the merits of the application, whereas r 2.26 of the Rules does not extend to any substantive determination of the application.
6. Applicant's arguments must be rejected: The Applicant's various arguments against the Registrar's decision must be rejected. The arguments that the decision was made unreasonably, or not in accordance with law, are bare assertion (cf grounds 1-3).
7. The argument that the Registrar took into account an irrelevant consideration (ground 4) seems to be based on the statement in the Registrar's decision that the Applicant could seek judicial review of that decision. The Applicant contends that such a statement has not been made in other decisions of Registrars refusing to accept documents for filing, and therefore (it is said) the Registrar made the decision in this case with the intention it be reviewed. Both steps in this argument must be rejected.
   • It is not correct that a statement about the availability of judicial review is never made in decisions of this sort: the Registrar's decision considered in Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274 referred to the availability of judicial review: see Kant v Principal Registrar at [10].
   • In any event, there is no conceivable basis for inferring that the Registrar here intended that the Applicant seek judicial review of the Registrar's decision. There can be no complaint when a decision-maker chooses to include this information for the benefit of the recipient. And the form of letters that have been sent by Registrars to the Applicant when refusing to accept other documents for filing says nothing about whether there was a proper basis for refusing to accept the present documents for filing.

1. In addition to the points made above (which are a complete reason to dismiss the application), there are two further reasons tending against granting any relief to the Applicant in this case.
2. Applicant is seeking to re-argue points dismissed as an abuse of process: First, the claims made in this proposed application (seeking injunctions against the CIA Director and the Commissioner) substantially reproduce the claims made in Kant v Principal Registrar, where the Applicant sought the following relief (at [8]):

(a) An injunction, under s.121 Regulatory Powers (Standard Provisions) Act 2014 requiring the First Respondent [CIA Director] 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 [Commissioner] do all things necessary to ensure compliance of the First Respondent.

1. A Registrar dismissed that application under r 2.26 of the Rules, on the basis that the application on its face was doomed to fail and, if accepted, would be an abuse of process: Kant v Principal Registrar at [10]. Justice Murphy dismissed an application for orders that these documents be accepted for filing, and made orders that the application be permanently stayed as an abuse of process: Kant v Principal Registrar at [61], [62]-[63].
2. Accordingly, the Applicant's current originating application could have been dismissed as an abuse of process, on the additional ground that the Applicant is seeking to re-argue points that were previously dismissed as an abuse of process. It might be noted that, although the Applicant has referred to some of his other previous proceedings in his submissions, he did not draw Kant v Principal Registrar to the Court's attention.
3. CIA Director has an immunity from suit: Second, I note also that the CIA Director has an immunity from being brought before Australian courts in the performance of the Director's functions. By s 9 of the Foreign States Immunities Act 1985 (Cth), a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding, except as provided by or under that Act. None of the exceptions to immunity provided for in that Act are relevant here. The CIA Director, as the head of an executive agency for the United States, forms part of a "foreign state" for these purposes (cf para (b) of the definition of "separate entity" in s 3).
4. For similar reasons, the Commissioner, a Commonwealth statutory body, has no power to "cause" the CIA Director to do anything (cf the relief sought against the Commissioner). There are constitutional limits on the power of the Commonwealth Executive to exercise coercive powers against a public official of another Australian State, let alone purporting to exercise Commonwealth coercive powers against a public official of a foreign country.
5. These points go to the merits of the Applicant's application against the CIA Director and the Commissioner, and therefore the Registrar was correct not to consider them. However, the complete lack of merit in the Applicant's underlying application might be reason to refuse to grant relief in proceedings to review the Registrar's decision to refuse to accept documents for filing: cf Kant v Principal Registrar at [45], citing Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia [2024] FCA 1256 at [33]- [34] (Wheelahan J).
6. However, the Registrar's decision does not contain any reviewable error, and it is not necessary to consider these points any further.

1. For the reasons set out above, the application for review of the Registrar's decision must be dismissed.
2. Permanent stay? As noted, the arguments sought to be raised in the Applicant's underlying originating application are substantially the same as arguments sought to be raised in one of the applications that was considered in Kant v Principal Registrar. Justice Murphy made orders permanently staying the Applicant's application for orders to require his documents to be accepted for filing as an abuse of process, on the basis that the proceeding was "an extreme case in which judicial economy and efficiency [were] undermined by repeated attempts at judicial review applications on manifestly untenable grounds": Kant v Principal Registrar at [63]. His Honour stated that "[i]n a real sense this proceeding, which seeks to resuscitate three earlier attempted proceedings, impairs the integrity of the Court and consumes its limited resources": Kant v Principal Registrar at [64]. It appears that, like this application, Murphy J determined that application, and made those orders, on the papers.
3. This reasoning applies with particular force to this proceeding, because the Applicant's proposed originating application seeks to resuscitate some of the arguments that were dismissed as untenable by Murphy J in March of this year. I will make the same orders as his Honour, and order that the proceeding be permanently stayed as an abuse of process.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hill.