Luck v National Duty Registrar of the Federal Court of Australia

Federal Court of Australia|2024-10-29|Before: Wheelahan J

National Practice Area: Administrative and Constitutional Law and Human Rights

Counsel for the Applicant: The applicant was self-represented and did not appear, but filed written submissions

Counsel for the Respondent: The respondent filed a submitting notice

order made by: WHEELAHAN J DATE OF ORDER: 29 October 2024

THE COURT ORDERS THAT:

The proceeding be permanently stayed as an abuse of process. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J:
Gaye Luck, also known as Gaye Alexandra Kuperman, seeks judicial review of a decision of a Registrar of the Court that was made pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) not to accept documents for filing on the grounds that on their face they were not bona fide, and were intended to vex, concluding that the documents were frivolous or vexatious. I will refer to these documents as the Rejected Documents.
The Rejected Documents comprised a lengthy proposed application for judicial review dated 28 May 2024 which, with its annexures, extended over 1,450 pages, together with a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). By the Rejected Documents, the applicant sought to commence a proceeding in this Court against 10 respondents, being Permanent Trustee Australia Ltd (Permanent Trustee) and the Attorneys-General of the Commonwealth and the States and Territories. In broad terms, the subject matter of the proposed proceeding was an ostensible application to this Court for judicial review arising from a decision of Kiefel CJ of the High Court of Australia refusing leave to the applicant to issue or file a notice of appeal in that Court.
By orders made in Chambers on 5 September 2024, I fixed the proceeding for hearing on 18 October 2024, and made provision for the applicant to file an outline of submissions. By a further order made in Chambers on 3 October 2024, I made provision for the applicant to file any written submissions she wished to make on the question whether this proceeding should be permanently stayed or summarily dismissed as an abuse of process. I noted in "Other Matters" that, at the hearing, the Court proposed to raise with the applicant the question whether the proceeding should be permanently stayed or summarily dismissed as an abuse of process.
In circumstances which I will outline later, the hearing did not proceed on 18 October 2024, and I adjourned it to 29 October 2024 at 11.00 am. The applicant did not appear at that hearing. I thereupon pronounced orders that the proceeding be permanently stayed as an abuse of process, stating that reasons would be published the following day. As I will address below, the proposed proceeding that the applicant sought to commence by the Rejected Documents is, beyond reasonable argument, frivolous, vexatious, and an abuse of process. Further, for the reasons that follow, I have determined that, by extension, this proceeding is itself an abuse of process and should be permanently stayed on that ground.

Background

On 13 February 1998, the applicant commenced a proceeding in the District Court of Queensland seeking damages for personal injuries that she alleged she sustained at a shopping centre. Permanent Trustee was alleged to be the owner and occupier of the shopping centre and was the defendant to the proceeding. There was a period of more than 19 years in which the applicant took no steps in the proceeding, and on 26 September 2022 a judge of the District Court dismissed the proceeding for want of prosecution.
The applicant appealed the decision to dismiss the proceeding for want of prosecution to the Queensland Court of Appeal, which dismissed the appeal on 28 March 2023: Kuperman v Permanent Trustee Australia Ltd [2023] QCA 54.
The applicant then sought special leave to appeal the decision of the Queensland Court of Appeal to the High Court of Australia. The applicant filed as part of her special leave application a notice of constitutional matter under s 78B of the Judiciary Act that was directed to Permanent Trustee and the Attorneys-General of the Commonwealth and each State and Territory. I will address later the relevance of the s 78B notice to the current proceeding.
On 3 August 2023, Edelman and Gleeson JJ dismissed the applicant's special leave application on the basis that the decision of the Court of Appeal was plainly correct, and that an appeal to the High Court would have no prospects of success: Kuperman v Permanent Trustee Australia Ltd [2023] HCASL 109. As a consequence, the High Court's appellate jurisdiction was not engaged.
The applicant then sought to "appeal" the dismissal of her application for special leave to appeal by presenting a notice of appeal to the High Court registry. On 22 August 2023, Steward J, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), directed the Registrar of the High Court to refuse to issue or file the applicant's notice of appeal without the leave of a Justice first had and obtained. On 31 August 2023, the applicant sought ex parte leave of a Justice of the High Court to issue or file the notice of appeal. The applicant filed with her ex parte application another s 78B notice, this one being dated 4 September 2023. Again, the s 78B notice was addressed to Permanent Trustee and the Attorneys-General of the Commonwealth and each State and Territory.
On 15 September 2023, Kiefel CJ refused the applicant's application: Kuperman, In the matter of an application for leave to issue or file [2023] HCATrans 127. In refusing the application, Kiefel CJ held that it was evident that the applicant simply wished to have the matter considered again, and that no bases were shown to warrant the reopening of the special leave application. Her Honour stated that the "appeal" was an attempt to adjudicate the same matter which was dealt with by the order of Edelman and Gleeson JJ, and that it was an abuse of process.

The applicant lodges the Rejected Documents in this Court

As I have mentioned, the applicant's proposed application for judicial review dated 28 May 2024 is lengthy. Putting aside its annexures, the body of the application is 30 pages in length. It is unnecessary to summarise every aspect of the proposed application. For present purposes it is sufficient to identify the following features -
The proposed application was headed "Application for Judicial Review".
By [1] of the proposed application, its basis was said to be pursuant to the Federal Court of Australia Act 1976 (Cth), Divisions 31.1 and 31.2 of the Federal Court Rules, ss 39B(1) and (1A) of the Judiciary Act, the Constitution, and s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
After citing its legislative basis, the proposed application was said to be made - in respect of the refusal to issue or file the applicant's notice of appeal in the matter of '…an application by Gaye Alexandra Kuperman for leave to issue or file a Notice of Appeal' [2023] HCA Trans 127 B49/2023 in the High Court of Australia by Kiefel, CJ on 15 September 2023, and for which a direction was made pursuant to HCR 6.07, by Steward J on 22 August 2023, to the Registrar, to refuse to accept for filing or issue, the applicant's document (the Notice of Appeal) without the leave of a justice first had.
By [2] of the proposed application, under the heading "Background", the applicant claimed among other things - This originating application for judicial review arises from a series of decisions and nondecisions by the High Court of Australia (not a party to this proceeding) on and prior to 15 September 2023, within the broader legal and constitutional framework that mandates equitable access to justice for all individuals, including those self-represented and with disabilities. Central to this application is the contention that the actions, or the lack thereof, by the First to Tenth respondents, in the face of known discriminatory provisions and policies within the High Court and its Rules, necessitate a thorough judicial examination.
The applicant further claimed in the proposed application - The application posits a hypothetical scenario wherein certain High Court decisions, particularly those impacting procedural fairness and the equitable participation of disabled, self-represented litigants, have an administrative character, thereby falling within the ambit of review under the ADJR Act. This hypothesis is rooted in a nuanced interpretation of the "administrative character" of decisions, as it applies to judicial processes and seeks to explore the extent to which judicial adherence to principles of non-discrimination, as mandated by the DDA, the Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Civil and Political Rights (ICCPR), is amenable to review under the ADJR Act.
There are several other references in the proposed application to decisions of the High Court, and particularly the decision of Kiefel CJ of 15 September 2023, as being decisions of an administrative character reviewable under the ADJR Act and s 39B of the Judiciary Act.
Allegations of a repetitive nature are made against Permanent Trustee, including an allegation under the heading "Impugned Decisions under Section 5 of the ADJR Act", that Permanent Trustee failed - to prevent the discrimination of the applicant by the High Court prior to and on 3 August 2023, 22 August 2023 and 15 September 2023 … especially by not addressing or objecting to systemic discrimination within judicial and administrative processes.
There are extensive allegations made against the proposed second to 10th respondents, being the Commonwealth, State and Territory Attorneys-General, the gravamen of which is that upon being served with s 78B notices, their decisions not to intervene in the applications that the applicant made to the High Court were reviewable under the ADJR Act. In reasons for refusing to accept the Rejected Documents, the Registrar stated the "none of the respondents made or were required to make the decisions to which the [a]pplication relates".
The orders sought by the applicant in the proposed application encompassed relief ostensibly directed to the High Court of Australia, including - a. Declaration of Unlawfulness: A declaration that the High Court's failure to grant the applicant relief from the discriminatory provisions of the High Court Rules and the subsequent dismissal of the application for leave to file a Notice of Appeal were unlawful under the ADJR Act. b. Review of Decision: An order for the review of the High Court's decisions, especially considering the alleged failure to make a decision under the ADJR Act and potential discrimination under the DDA and domestic and international law, including, amongst other ratified and incorporated treaties, the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities. c. Amendments to High Court Rules: Directives for the High Court to amend its rules to prevent discrimination against self-represented litigants and those with disabilities, in compliance with the DDA and domestic and international law, including, amongst other ratified and incorporated treaties, the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities.
Various other forms of relief were sought against Permanent Trustee and the Attorneys-General. Against the Attorneys-General, the relief sought included mandamus and injunctions compelling the Attorneys to intervene in the applicant's applications to the High Court, which I note have been disposed of by that Court.

The applicant seeks judicial review of the Registrar's decision to reject the Rejected Documents

The proceeding before me is the applicant's application filed 23 August 2024 seeking judicial review of the Registrar's decision not to accept the Rejected Documents. The applicant seeks orders including that the decision of the Registrar be quashed, and that the Registrar be directed to accept the documents. The applicant has also filed a s 78B notice in this proceeding which, amongst other things, seeks to raise as an issue in this proceeding the question whether s 35 of the Judiciary Act can validly regulate the High Court's appellate jurisdiction.
By her application in this proceeding, the applicant cites several grounds of review under ss 5 and 6 of the ADJR Act, including -
a breach of the rules of natural justice, in that the Registrar did not provide the applicant a fair hearing or an opportunity to rectify any perceived deficiencies in her documents;
the delay from 15 March 2024, when the Rejected Documents were lodged, until 15 August 2024, when they were not accepted for filing, which amounted to a denial of procedural fairness;
that the Registrar failed to take account of relevant considerations, including the applicant's claimed rights under the Disability Discrimination Act 1992 (Cth);
that the Registrar's decision was unreasonable in the sense that no reasonable person could have made it; and
that the Registrar mischaracterised legal obligations in stating that "none of the respondents made or were required to make the decisions to which the [a]pplication relates".
Further grounds of review of the Registrar's decision are set out, including -
that the Registrar "exceeded his jurisdiction by determining whether the decision to refuse leave to file the applicant's Notice of Appeal in the High Court, was administrative or judicial", thereby denying the applicant the opportunity for judicial review under the ADJR Act;
allegations of discrimination and victimisation on the basis of disability, which resulted from failures to accommodate the applicant's needs in contravention of ss 42 and 43 of the Disability Discrimination Act; and
failures to uphold human rights obligations in breach of international treaties, namely the Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights, alleged to be enshrined in the Australian Human Rights Commission Act 1986 (Cth).
Arguments advanced by the applicant in her application in this proceeding include that -
the decision of a Justice of the High Court to refuse leave to the applicant to issue or file her purported notice of appeal from the decision refusing special leave, while involving elements of judicial power, such as determining whether the application constituted an abuse of process, was primarily administrative because it concerned the management of filings;
s 73 of the Constitution ensured that no exception or regulation prescribed by Parliament can prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which, at the establishment of the Commonwealth, an appeal lay from such Supreme Court to the Queen in Council. The applicant contended that at the time of federation an appeal lay from the Supreme Court of Queensland to the Queen in Council, and that s 35 of the Judiciary Act, which regulates appeals by imposing a requirement for special leave to appeal, was no obstacle to her appeal from the Queensland Court of Appeal, because the requirement for special leave to appeal was invalid;
by refusing special leave to appeal, and by then denying the applicant the ability to file a notice of appeal, the High Court deprived the applicant of rights under Australian law, namely those afforded by the Disability Discrimination Act. The applicant further contended that these actions - may constitute a serious violation of international legal principles, particularly under Article 7 of the Rome Statute of the International Criminal Court. The systematic denial of the applicant's rights could be interpreted as an act of persecution, a crime against humanity under international law. This continuous obstruction, therefore, not only violates domestic constitutional protections but may also breach international obligations to which Australia is a signatory.
on the hypothesis that the High Court's refusal of special leave was to be characterised as a "regulatory matter", then the refusal of special leave was reviewable in this Court under the ADJR Act.
The applicant filed written submissions in accordance with the directions that I made. Those submissions were not altogether coherent. They advanced further claims, including that Permanent Trustee owed the applicant obligations under the Federal Court Rules as well as the Disability Discrimination Act. As for the Attorneys-General, the applicant submitted that their failure to engage with constitutional issues raised by her s 78B notices amounted to "a dereliction of their duty under the Judiciary Act". The applicant otherwise supported her claims for relief under the ADJR Act, and disputed the characterisation of her claims as vexatious. In response to the opportunity afforded to her to address why this proceeding should not be permanently stayed as an abuse of process, the applicant submitted, amongst other things, that this proceeding raised complex constitutional issues about the separation of powers that required full judicial scrutiny, and that a stay was inappropriate. By her written submissions, the applicant also raised a claim that I should disqualify myself from hearing and determining this proceeding on the ground of apprehended bias. As the applicant did not appear at the hearing, no application was made. However, I will address below the applicant's submissions nonetheless. Before I do so, I will recount the circumstances of the applicant's failure to appear at the adjourned hearing listed for 29 October 2024.

The applicant's failure to appear

As I stated earlier, I fixed the proceeding for hearing for 18 October 2024. On the afternoon of 17 October, the applicant sent a letter addressed to the "Registrar" of the Court in which she claimed that she could not appear at the hearing "because of the stress and trauma affecting [her] in relation to those issues". The issues to which the applicant appeared to refer were that she sought to be provided with "reasonable adjustments in accordance with [her] rights under the Disability Discrimination Act 1992 (Cth) to be decided by an administrative officer of the Federal Court of Australia". The applicant did not attach any supporting medical material, but claimed that she had "provided numerous medical certificates and reports to the Court to support my request for reasonable adjustments". The letter did not in terms seek an order of the Court adjourning the hearing.
Upon being provided with a copy of the applicant's correspondence, my Chambers emailed the applicant stating - Your letter to the Registry of today's date requesting an "administrative" adjournment of tomorrow's hearing has been referred to his Honour. If it remains the case tomorrow morning that you are unable to appear at the hearing, his Honour is minded in the circumstances to make an order in Chambers adjourning the hearing until Tuesday 29 October 2024 at 11.00 am. Please inform me via email by 10.30 am tomorrow whether or not you are able to attend the hearing.
The applicant did not respond directly to this email. Instead, she sent another letter, this time addressed to the Principal Registrar and Chief Executive Officer of the Court, dated 18 October 2024 and copied to my Chambers. In that letter, she referred to her written submissions in which she claimed that I should disqualify myself, and explicitly acknowledged that she did not directly request an adjournment in her previous letter. The applicant claimed that I had to determine first whether or not to disqualify myself. The applicant then stated that she would not be appearing that day - The applicant will not be appearing today due to the significant impact this appearance would have on her health, and this was clearly communicated to the Registrar, and in the applicant's submissions, lodged on 16 October 2024 and filed 17 October 2024. The act of forwarding the letter to Justice Wheelahan's chambers, rather than handling it administratively, further underscores the separation of powers issue with the PR & CEO's involvement in both matters VID839/2024 and VID870/2024.
In accordance with the indication that my Chambers had given to the applicant in the email set out at [18], I adjourned the hearing to 29 October 2024 at 11.00 am.
On 29 October 2024 at 9.21 am, the applicant sent an email to the email address of the Victorian Registry. By that email the applicant stated - Dear Registrar, I am giving notice of my inability to appear in the abovementioned matter which is listed for hearing today before Justice Wheelahan at 11:00am, for the reasons given in the attached letter sent to the Registrar on 17 October 2024. I seek to be provided with a grant of reasonable adjustments pursuant to my rights under the Disability Discrimination Act 1992. Please convey my apologies to the Court for any inconvenience caused.
Again, no supporting material was provided with the email, and no application for an adjournment was made to the Court. Indeed, the applicant's reference to her earlier correspondence reinforces that the applicant was not seeking to have the Court adjourn the hearing. My Chambers emailed the applicant at 9.44 am stating that the proceeding remained listed for hearing at 11.00 am in Court 8B.
When the matter was called in court shortly after 11.00 am, there was no appearance for the applicant. Nor was there any appearance when the matter was called outside the courtroom. I then pronounced orders staying the proceeding permanently. I did not entertain adjourning the hearing further for two main reasons. First, the applicant had not sought an adjournment from the Court. Secondly, there was no sufficient material before the Court to evidence that the applicant was unable to appear. I add that, having reviewed the applicant's written material, in hindsight this would have been a case that was suitable for determination without an oral hearing pursuant to s 20A(2) of the Federal Court of Australia Act on the basis that the matter was frivolous and vexatious and therefore there was no possibility that any oral submissions by the applicant could provide any prospect of success. This will become apparent when I turn to the merits of the applicant's claims and my reasons for concluding that this proceeding is an abuse of process. But as it happened, the applicant was given the opportunity of an oral hearing which she did not take up.

The applicant's claims in this proceeding of apprehended bias are rejected

Because the applicant did not appear at the hearing, she did not prosecute in Court any application that I disqualify myself from determining the matter. However, as I foreshadowed earlier, I will address the applicant's written submissions that I should disqualify myself from hearing the matter on the ground of apprehended bias.
On 14 October 2024, the applicant sent a letter to my Chambers seeking clarification as to whether I had "any financial or personal interests in any corporations involved in these proceedings", specifically Permanent Trustee, and various other entities including the shareholders of Permanent Trustee that were listed in an ASIC search that the applicant attached to the letter. One of those shareholders was Westpac Banking Corporation (Westpac). The applicant also sought clarification that I had no financial or personal interest in various persons whom the applicant associated with another proceeding in which she is applicant and which is in my docket, VID870 of 2024, which has as its foundation a decision by the Victorian Court of Appeal Registry to reject documents that the applicant had lodged in that Court, and to request further information in relation to the applicant's request for a fee waiver. My Chambers responded to the applicant's email, stating that I did "not have any shareholding in the corporate entities, or any personal interest in the other entities" identified in the applicant's letter.
On 15 October 2024, the applicant sent an email to my Chambers asking for further information, including as to whether I had any "other types of personal or financial connections … or any indirect financial, relational, or other interests" in the entities. The applicant also asked whether I had any "broader personal or financial interests, whether direct or indirect, in both the corporate entities mentioned and the related entities, including any relational or financial connections with their subsidiaries, affiliates, or other linked parties". My Chambers responded by email stating that, except for being a retail customer of Westpac, I did not to my knowledge have any direct or indirect financial, personal, or other interest in any of the entities identified in the applicant's letter, or any of their related entities, affiliates or other linked parties.
The basis of the submission that I should disqualify myself was said to be the combination of my conduct in proceeding VID870 of 2024 and the fact that I am a retail customer of Westpac. The applicant submitted that, because of these facts, the fair-minded lay observer referred to in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 might reasonably apprehend that I might not bring an impartial mind to the resolution of this matter.
The applicant's submission that I should disqualify myself on the ground that I am a retail customer of Westpac is without merit. The fair-minded lay observer referred to in Ebner would not apprehend that there is any real possibility that I might not bring an impartial mind to the resolution of this matter. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said at [8] that applying the apprehension of bias principle "requires two steps" - First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
In Webb v The Queen (1994) 181 CLR 41, Deane J at 74 (in dissent, though subsequently cited on this point by the majority in Ebner at [24]) identified four categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. Being a retail customer of Westpac is an association, not an interest. Still, as the majority in Ebner held at [28], the principles apply in the same manner to cases involving associations as to those involving interests.
There is no logical connection between my association with Westpac as a retail customer and the possibility that I might not bring an impartial mind to the adjudication of this matter. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner at [29], "[i]t may be assumed that all Australian judges have some form of relationship with a bank", noting that "[t]here are only four major banking groups in the country". Since there is no rational basis for concluding that the outcome of this proceeding could in any way affect the creditworthiness of Westpac, there is no rational basis to suppose that my status as a retail customer of the bank might mean that I might not bring an impartial mind to the resolution of the proceeding. Moreover, Westpac is not even a party to this proceeding. Its status is no more than as one of many shareholders of Permanent Trustee.
The applicant also submitted that my disqualification was necessitated by what she characterised as my "initial failure to disclose [my] relationship with Westpac, followed by a belated admission". I do not accept this submission either. The High Court has held that disclosure of interests and associations is "a matter of prudence and professional practice", which should generally occur "if there is a serious possibility that they are potentially disqualifying": see Ebner at [69]. In this case, there was no serious possibility that being a retail customer of Westpac could engage the principles essayed in Ebner. However, the information was disclosed in direct response to the enquiry in the applicant's letter of 15 October 2024, in which the applicant asked my Chambers the different question whether I had any "other types of personal or financial connections", or "any indirect financial, relational, or other interests in both the corporate and related entities". This course of events is not capable of giving rise to any reasonable apprehension that I might not bring an impartial mind to the adjudication of this proceeding.
The applicant submitted that my "conduct" in proceeding VID870 of 2024 could also give rise to a reasonable apprehension of bias. The applicant's submission was that the relevant conduct comprised my refusal to provide her with a list of individuals who observed a case management hearing in that proceeding by video link, and what the applicant characterised as a hostile, intimidating and dismissive manner, which is a reference to what occurred at the case management hearing. I have already given reasons for why my refusal to provide a list of observers to the applicant did not lead to a reasonable apprehension of bias in proceeding VID870 of 2024: Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia [2024] FCA 1161. A fortiori, there is no logical reason to think it could affect my impartiality in this proceeding. Further, I reject the applicant's characterisation of my manner in proceeding VID870 of 2024, and her claim that I failed to accord her procedural fairness. The applicant conducted the case management hearing in a disruptive fashion by interrupting me during the course of giving oral reasons for my rejection of her application that I disqualify myself, at which point I told her to "sit down". Accordingly, this aspect of the applicant's claim does not provide any foundation for the applicant's claim that I should disqualify myself.

This proceeding is an abuse of process

Abuse of process may take many forms, and the categories are not closed: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 414 ALR 635 at [26] (Kiefel CJ, Gageler and Jagot JJ), citing Ridgeway v The Queen (1995) 184 CLR 19 at 75 (Gaudron J). Noting that there are no closed categories, and that account must be taken of the circumstances of each case, one recognised category of abuse of process is collateral attacks on previous decisions: see generally Rogers v The Queen (1994) 181 CLR 251 at 255 (Mason CJ); Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ).
The proposed proceeding that the applicant sought to commence in this Court by the Rejected Documents would have constituted a particularly clear instance of an abuse of process. By the proposed proceeding, the applicant sought to mount a collateral attack on decisions of the High Court exercising its powers to regulate and protect its own processes, including from abuse. The collateral attack was founded on claims that were frivolous or vexatious, as the Registrar considered to be the case on the face of the Rejected Documents. The vehicle that the applicant sought to create for this collateral attack did not involve any direct challenge to the High Court's decisions, nor could it. Decisions of Justices of the High Court are not amenable to supervision and correction by constitutional writs issued by the High Court itself, still less a statutory court inferior to it in the hierarchy: Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603-4 (Brennan CJ), 608 (Dawson J), 636 (Gummow J), 647 (Kirby J); Re Toohey; Ex parte Gunter (1996) 70 ALJR 644 at 645 (McHugh J). In addition, the decision of Kiefel CJ refusing leave to file the notice of appeal was an exercise of judicial power, not amenable to review under the ADJR Act: see, in relation to the corresponding position in this Court, Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41; 338 ALR 360 at [25] (Nettle J); Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 at [18] (Lee, Whitlam and Jacobson JJ). Further, it is ludicrous to think that this Court would, in the exercise of a discretionary power to grant relief under the ADJR Act, make an order directed to a Justice of the High Court.
The vehicle created by the applicant for her collateral attack on decisions of the High Court involved claims made against Permanent Trustee for relief under the ADJR Act on grounds that are manifestly hopeless, and against the Attorneys-General in relation to their failure to intervene in the applicant's applications to the High Court on grounds that are manifestly hopeless.
Therefore, no reviewable error has been shown in the Registrar's decision to refuse to accept the Rejected Documents for filing on the ground that on their face they were frivolous or vexatious. Further, there is no merit in the applicant's claim that she was denied natural justice. There is no implication in r 2.26 of the Federal Court Rules that a Registrar must afford a lodging party a hearing, or an opportunity to amend documents that on their face are an abuse of process of the Court, or frivolous, or vexatious. Any such implication would defeat the purposes of r 2.26: see Re Young [2020] HCA 13; 376 ALR 567 at [12] (Gageler J). See also Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [38] (Barker, Banks-Smith and Colvin JJ) and Somasundaram v Luxton [2020] FCA 1076 at [41] (Murphy J). Moreover, and going to the heart of the matter, the Rejected Documents are so clearly an abuse of process that there would be no utility in granting the applicant relief under the ADJR Act, or in the exercise of the Court's jurisdiction under s 39B of the Judiciary Act. As I explain in the judgment published at the same time as this judgment in VID870 of 2024, Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [33]-[34], the registry of any court acts under the administrative direction of its judges, and in this Court there is power under r 1.37 to direct a Registrar to do, or not to do, an act or thing.
As to this proceeding, it has been brought in furtherance of the abuse of process that the applicant sought to effect by seeking to file the Rejected Documents. That is manifest in the various claims and contentions that the applicant makes in this proceeding, which again amount to a collateral challenge to the High Court's exercise of its own powers to prevent its own processes from being abused. The applicant has woven into the claims in this proceeding an array of arguments concerning the jurisdiction exercised by the High Court that are not maintainable. As I have mentioned, the applicant's claims include an apparent challenge in this proceeding to the constitutional validity of s 35 of the Judiciary Act relating to the requirement for special leave to appeal which, apart from anything else, is foreclosed by Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194.
As this proceeding is an abuse of process involving frivolous and vexatious claims, it follows that, for the purposes of s 78B of the Judiciary Act, no matter really and substantially arises under the Constitution or involving its interpretation: see Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [13]-[14] (French J).
In drawing the conclusion that this proceeding is itself an abuse of process, I acknowledge that the power of the Court to stay a proceeding as an abuse of process is to be exercised only in clear cases: Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720 (Dixon J). Recognising that to stay a proceeding as an abuse of process does not involve the exercise of a discretion, the principle referred to must be directed to the level of satisfaction required before concluding that a proceeding is an abuse of process. For the reasons that I have given, this application is part of a collateral attack by the applicant on a decision of a Justice of the High Court exercising the judicial power of that Court, and I conclude that the application is one of those exceptional cases which justifies the conclusion that it is vexatious and an abuse of process with the result that the Court's power to stay it permanently should be exercised. The power should be exercised for reasons including the protection of the Court's own resources for, as the Full Court observed in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 at [6] (Lee, Feutrill and Jackman JJ) - 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.

Conclusion

For the above reasons, I ordered that this proceeding be stayed permanently as an abuse of process. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Federal Court Rules 2011(Cth)rr 1.37, 2.26

Judiciary Act 1903(Cth)ss 35, 39B(1)-(1A), 78B

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