McCagh v Registrar of Landgate [2025] FCA 1537

Federal Court of Australia|2025-10-21|Before: Tottle J, Vandongen J

The applicant is granted leave to file a notice of discontinuance.
The applicant is to file a notice of discontinuance stating that the whole of the proceedings in WAD54/2025, which were commenced by originating application on 26 February 2025, is discontinued.
Order 1 ceases to have effect unless the applicant complies with order 2 by 4.00 pm AWST on 22 October 2025.
The parties, including the interested party, are to bear their own costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The applicant, David Thomas McCagh, commenced proceedings in this Court against the 'Registrar of Landgate' (which I have taken to refer, more correctly, to the Registrar of Titles: see s 7(1) of the Transfer of Land Act 1893 (WA)), by filing an originating application dated 21 February 2025. In that application, Mr McCagh sought injunctive relief, restraining the Registrar from transferring various lots of land. The originating application was supported by an affidavit that was sworn by Mr McCagh on 25 February 2025. Unfortunately, neither the originating application nor Mr McCagh's affidavit provided any real insight into the basis on which it was contended that Mr McCagh was entitled to the relief sought.
There was a further difficulty with Mr McCagh's originating application. At the time these proceedings were commenced, the lots of land referred to in the originating application were already the subject of vacant possession orders that were made by Tottle J in the Supreme Court of Western Australia: Rural Bank (A division of Bendigo and Adelaide Bank Ltd) v McCagh [2022] WASC 339 (Rural Bank (No 1)). However, and for reasons that are best known to Mr McCagh's solicitor, there was no reference made to those orders in Mr McCagh's affidavit, and Rural Bank was not joined as a party to these proceedings.
After it became apparent that Rural Bank may have an interest in these proceedings, Mr McCagh was directed to serve his originating application and affidavit on Rural Bank. I subsequently granted Rural Bank leave to appear in these proceedings as an interested party.
On 9 April 2025, Tottle J made an order that Mr McCagh be restrained from continuing with these proceedings and the proceedings then effectively ground to a halt. However, in October 2025 this Court wrote to the parties seeking submissions about whether it should make an order under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), transferring the proceedings to the Supreme Court of Western Australia.
No decision was made about that issue as Mr McCagh then sought to discontinue the proceedings. After hearing submissions from Mr McCagh's solicitor and from counsel who appeared on behalf of Rural Bank, I granted Mr McCagh leave to file a notice of discontinuance, which he did later that same day.
At the hearing, counsel for Rural Bank submitted that the leave sought by Mr McCagh to discontinue these proceedings should be granted on conditions. Those conditions were, in effect, that:

(1) pursuant to r 1.35 of the Federal Court Rules 2011 (Cth), r 26.14 of the Rules shall not apply to Rural Bank, with the effect that the discontinuance can be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action; and

(2) Mr McCagh shall not commence any further proceedings in any court against Rural Bank or the Registrar in respect of any claims connected with the land identified in his originating application or in connection with the loan facilities and mortgages of land identified at [1], [3], and [56] of Rural Bank (No 1).

As counsel for Rural Bank explained, those conditions were sought because it was contended that these proceedings, and any future proceedings in this Court in relation to the same subject matter, would constitute an abuse of process. As I understood it, the conditions were sought to ensure that this Court was not being used to undermine the integrity of the Supreme Court of Western Australia.
For the following two reasons, I refused to impose those conditions.
Firstly, I was told that the evidence that Rural Bank relied on in support of its contention that conditions should be placed on a grant of leave to discontinue was the reasons of Tottle J in Rural Bank (A division of Bendigo and Adelaide Bank Ltd) v McCagh [No 2] [2025] WASC 142. In that case, and as I have already said, his Honour made various orders including an order restraining Mr McCagh from continuing with these proceedings. In his reasons for decision, Tottle J also made several observations about the proceedings commenced in this Court. It is only necessary to refer to one of those observations, which appears at [28] of his Honour's reasons:

I am satisfied that the proceedings commenced by Mr McCagh in the Federal Court of Australia are a transparent and meritless attempt to frustrate the integrity of the processes of this court.

Counsel for Rural Bank also advised that he relied on McCagh v McCagh [2025] WASCA 105, where the Court of Appeal of the Supreme Court of Western Australia made also made some observations about the merits of Mr McCagh's arguments, in the course of refusing an application that had been made to stay Tottle J's orders.
However, as I pointed out to counsel, the observations that were made in those cases is not evidence. In any event, those judgments cannot be used to prove the existence of a fact that was in issue in those proceedings: s 91 of the Evidence Act 1995 (Cth). Accordingly, it appeared to me that there was in fact no evidence to support the Rural Bank's contention that conditions should be imposed on any grant of leave to discontinue.
Secondly, Rural Bank already has the benefit of an anti-suit order that was made by Tottle J. By that order, Mr McCagh, whether by himself, his employees, his agents or otherwise, is restrained until further order from:

without leave of a judge of [the Supreme Court of Western Australia], commencing any claim concerning the subject matter of these proceedings and the orders of the Honourable Justice Tottle made 13 October 2022 (as amended on 7 August 2024), including their enforcement, in any Court other than the Supreme Court of Western Australia.

Accordingly, if Mr McCagh were to now commence any further proceedings in this Court concerning the subject matter of the proceedings before Tottle J, or the orders that his Honour made, including their enforcement, without first obtaining leave from a judge of that Court, Mr McCagh would be at risk of being found by that Court to be in contempt. In those circumstances, it appeared to me that the orders sought by the Rural Bank in this Court would, if made, have no practical utility.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.

Courts (Cross-vesting) Act 1987

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (3)