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Category: Principal judgment

Parties: Beverley Peers (First Plaintiff)
Rodney Culleton (Second Plaintiff)
Anna Bennett (First Defendant)
Adam Griffin (Second Defendant)
Commonwealth of Australia (Intervener)

Representation: Counsel:
M Sherman (Intervener)
Solicitors:
Australian Government Solicitor (Intervener)
First Plaintiff (Self-Represented)
Second Plaintiff (Self-Represented)

File Number(s): 2025/00369252

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By its notice of motion filed on 25 May 2026, the Commonwealth of Australia seeks the following orders or relief:

“1. Pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPRs) the proceedings be dismissed generally on the grounds that:

(a) no reasonable cause of action is disclosed; and/or

(b) the proceeding is an abuse of process; and/or

(c) the proceeding is frivolous or vexatious.

2. In the alternative, pursuant to rule 14.28(1)(a), (b) and (c) of the UCPRs, the amended statement of claim filed by the first and second plaintiffs on 2 March 2026 be struck out on the grounds that:

(a) no reasonable cause of action is disclosed; and/or

(b) the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings; and/or

(c) the proceeding is an abuse of process.

3. The first and second plaintiffs are to pay the Commonwealth’s costs of the proceeding, including the costs of this motion.

4. Such further or other order as the Court thinks fit.”

2. The Commonwealth is not a party to these proceedings but seeks relief in its capacity as an intervener in accordance with leave granted by me on 20 May 2026: see Peers v Bennett [2026] NSWSC 536. Familiarity with that decision is assumed for present purposes.

3. However, by way of recap, the present application stems from proceedings initially commenced in the original jurisdiction of the High Court by the plaintiffs in November and December 2024. It will be recalled that the plaintiffs each filed a writ of summons and later a statement of claim seeking declarations that various legislative provisions and subordinate instruments were invalid. In particular, Mr Culleton sought declarations to the effect that certain provisions of the Emergency Management Act 2005 (WA) and the Quarantine (Closing the Border) Directions (WA) were invalid. He also sought other declaratory relief concerning asserted travel rights and proportionality reasoning.

4. Dr Peers sought declarations to the effect that the Fair Work Act 2009 (Cth) operated in relation to a particular entity, and that provisions of the Public Health and Wellbeing Act 2008 (Vic) were invalid.

5. On 9 April 2025, the matters were listed for a directions hearing before Beech‑Jones J, who remitted them to the Federal Court of Australia. Mr Culleton’s matter was remitted to the Perth Registry, while Dr Peers’ matter was remitted to the Melbourne Registry.

6. On 25 and 26 June 2025, following remittal by Beech-Jones J, the plaintiffs lodged separate applications for constitutional and other writs. Deputy Registrar Griffin sought a direction from a Justice in relation to those lodgements under subrule 6.07.1 and such a direction was made on 27 June 2025.

7. On 14 July 2025, the plaintiffs lodged a further application for constitutional or other writs with the High Court in connection with Deputy Registrar Griffin’s “decision” under subrule 6.07.1. Deputy Registrar Bennett sought a direction from a Justice in relation to this lodgement under subrule 6.07.1 and such a direction was made on 23 July 2025.

8. Subrule 6.07.1 operates where it appears to a Registrar that a writ, application, summons, affidavit or another document is an abuse of process or is vexatious or falls outside the jurisdiction of the Court. It permits the Registrar to seek the direction of a Justice. Under subrule 6.07.2, the Justice may direct the Registrar to issue or to file the document, or to refuse to issue or file the document, without the leave of a Justice.

9. On 25 September 2025, the plaintiffs commenced these proceedings. They were directed to file an amended statement of claim by 27 February 2026, and that document was subsequently filed on 2 March 2026. As a result, both plaintiffs have already had an opportunity to re-plead their cases in a manner that discloses a reasonable cause of action.

10. The relief claimed in the plaintiffs’ amended statement of claim includes a declaration that the conduct of Deputy Registrars Bennett and Griffin answers the description of conduct by a public official under s 29 of the Public Interest Disclosure Act 2013 (Cth) and is prohibited and invalid in law absent an intelligible justification to exercise or apply subrule 6.07.1.

11. Deputy Registrars Bennett and Griffin lodged submitting appearances on 12 January 2026 and 13 March 2026 respectively. As already noted, I granted leave on 20 May 2026 to the Commonwealth to intervene in the proceedings.

12. The Commonwealth made submissions with respect to the principles that apply in applications such as this made under UCPR 13.4 to dismiss a proceeding generally, and to an application made under UCPR 14.28 to strike out the whole of a statement of claim. Limited to the question of the applicable principles, those submissions are uncontroversial.

Summary dismissal

13. The court only exercises the power to dismiss a claim at an interlocutory stage where the claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [5]-[9], [46].

14. The power is an exceptional one, and the claim must generally be “obviously untenable”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-30. The court usually determines the matter by reference to the pleadings and asks whether there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railway**s Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 90.

15. Where a claim may be saved by an amendment to a pleading, it is often appropriate to grant leave to re-plead rather than to strike it out: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.

Abuse of process

16. In relation to the abuse of process ground, where proceedings have been started in one court that can provide a complete remedy in relation to a claim, it may be an abuse of process to engage in proceedings in another jurisdiction: Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; [1992] FCA 71 at 292-3. It may also be an abuse of process to pursue proceedings where a court is being asked to circumvent the usual process for appeal or review of a decision: San Bao Pty Ltd v Minister for Immigration and Citizenship (2026) 100 ALJR 391; [2026] HCA 6 at [3]; Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 94 ALJR 497; [2020] HCA 18 at [13]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, 540-1.

17. Similar principles apply where an application is made to strike out the whole of a pleading. That is, a statement of claim may be struck out where it fails to disclose a reasonable cause of action and is “obviously untenable” in the sense discussed in General Steel. Under UCPR 14.28, there is an additional ground for striking out a pleading which may be met where the relevant pleading is “embarrassing” in a legal sense: 14.28(1)(b). A pleading will be embarrassing in the legal sense where it contains confusing or irrelevant allegations: Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 at [18].

The amended statement of claim

18. The plaintiffs claim the following relief:

“RELIEF CLAIMED

To court to declare that the conduct of High Court Deputy Registrars Adam Griffin and Anna Bennett answers the description of conduct by a public official of s 29 of the Public Interest Disclosure Act 2013 (Cth) and is prohibited and invalid in law absent intelligible justification to exercise Rule 6.07.1 of the High Court Rules 2004 (Cth).

PLEADINGS AND PARTICULARS

1. This is a matter brought by residents of different states against High Court Deputy Registrars Adam Griffin and Anna Bennett for conduct contrary to section 29 of the Public Interest Disclosure Act 2013 (Cth) in relation to their exercise of Rule 6.07.1 of the High Court Rules 2004 (Cth). Section 29 of the Act prohibits conduct by a public official that is unreasonable, unjust or oppressive. Unreasonableness means conduct or action taken that lacks any intelligible justification.

Background

3. The High Court on 9 April, 2025 remitted both of the Plaintiffs individual matters (C16/2024 & C6/2025) to the Federal Court. Both Plaintiffs applied to the High Court in June of 2025 for the constitutional writs of s 75(v) of the Constitution against the Federal Court Judges which applications were both refused by High Court Deputy Registrar Adam Griffin. The Plaintiffs therefore combined and applied again to the High Court in July of 2025 for constitutional writs against Registrar Adam Griffin which application was refused by Deputy Registrar Anna Bennett.

The cause of action

…

9. Neither Deputy Registrar Adam Griffin or Anna Bennett have disclosed any grounds or reasons for enlivening Rule 6.07.1 which makes their conduct unreasonable, unjust and oppressive. Their defence appears to rely on a decision in Simmonds, In the matter of an application for leave to issue or file (2020) HCATrans (Re Simmonds) where the High Court has stated that reasons do not need to be given in the exercise of Rule 6.07.1. [My emphasis.]

…

13. Had Registrars Adam Griffin and Anna Bennett given an intelligible justification for exercising the Rule it would give the Plaintiff the opportunity to reassess their application and if possible correct the weakness in it or if the weakness is fatal to the case then they would not subject themselves to rule 6.07.2 & 3 and thereby also spare the Courts most valuable time.

14. If there is no legal control over the exercise of Rule 6.07.1 it would allow unreasonable and arbitrary decision making or conduct which would put an end to the rule of law. Discretionary powers under Rule 6.07.1 are not so conferred (see French CJ at [23]-[24] and Gageler J as he then was at [90]-[92] in Minister for Immigration and Citizenship v Li (2013) HCA)

…

23. But for the actions of Deputy Registrars Adam Griffin and Anna Bennett by improperly enlivening Rule 6.07.1 of the High Court Rules 2004 (Cth) in an arbitrary and unreasonable manner lacking any intelligible justification and subjecting the applicants to procedural unfairness in the subsequent exercise of Rule 6.07.2 & 3 which are conducted ex parte where the applicant is completely unaware of the case against them and given no opportunity let alone a reasonable one to respond to it. That is indeed the stuff of nightmares consistent with dictatorships and communist regimes and has no place in Australian law and that is why s 29 of the Public Interest Disclosure Act 2013 (Cth) exists which is to safeguard against such conduct.

24. The process of the triad of rules of Rule 6.07 cannot be initiated arbitrarily by the Commonwealth officers the Deputy Registrars of the High Court. The true purpose of the conduct of the Registrars of the High Court improperly exercising of the Rule was to prevent disclosure of the true jurisdictional powers of the Federal Court and to remove restraints on Commonwealth officers such as the Registrars of the High Court themselves from being controlled by the constitutional writs and answers the conduct engaged in by a public official for the purpose of perverting, or attempting to pervert, the course of justice; is based, in whole or in part, on improper motives prohibited by s 29 of the Public Interest Disclosure Act 2013 (Cth).

25. If the New South Wales Supreme Court does not make findings against Adam Griffin and Anna Bennett under s 29 of the Public Interest Disclosure Act then the outcome is that the true jurisdictional powers of the Federal Court would not be disclosed and remain hidden and nor would Commonwealth officers such as the Deputy Registrars of the High Court be controlled by the constitutional writs under s 75(v) of the Constitution.

Questions of law:

1. Is the conduct of Adam Griffin unreasonable, unjust or oppressive by failing to state an intelligible justification to exercise Rule 6.07.1 of the High Court Rules 2004 (Cth)?

If so, is such conduct prohibited by section 29 of the Public Interest Disclosure Act 2013 (Cth)?

2. Is the conduct of Anna Bennett unreasonable, unjust or oppressive by failing to state an intelligible justification to exercise Rule 6.07.1 of the High Court Rules 2004 (Cth) in relation to the constitutional writ against the Federal Court Judges before Deputy Registrar Adam Griffin?

If so, is such conduct prohibited by section 29 of the Public Interest Disclosure Act 2013 (Cth)?”

19. I acknowledge that this selection of paragraphs from the amended statement of claim may not completely or adequately represent or encapsulate all of the ways in which the plaintiffs contend that the conduct of the Deputy Registrars is justiciable at their suit in this Court.

Commonwealth’s submissions

20. Section 29 of the Public Interest Disclosure Act is a definitional provision. As is evident from the “Relief Claimed” section of the plaintiffs’ amended statement of claim, the proceedings are directed at obtaining a declaration that certain alleged conduct of the Deputy Registrars is “prohibited and invalid in law” by reason of s 29.

21. That provision appears in Part 2, Division 2 of the Act. Section 29(1) is relevantly in the following terms:

29 Meaning of disclosable conduct

(1) Disclosable conduct is conduct of a kind mentioned in the following table that is conduct:

(a) engaged in by an agency; or

(b) engaged in by a public official, in connection with his or her position as a public official; or

(c) engaged in by a contracted service provider for a Commonwealth contract, in connection with entering into, or giving effect to, that contract.

22. Section 29(1) includes a table. It is clear from the amended statement of claim that the relevant items in the table upon which the plaintiffs rely are Items 4 and 5, which are in the following terms:

4 Conduct that constitutes maladministration, including conduct that:

(a) is based, in whole or in part, on improper motives; or

(b) is unreasonable, unjust or oppressive; or

(c) is negligent.

5 Conduct that is an abuse of public trust.

23. The Commonwealth submitted that the fundamental difficulty with the plaintiffs’ case is that s 29 is a definitional provision. It exists to identify conduct that is “disclosable conduct”. There is no provision in the Act that operates to prohibit disclosable conduct or render it invalid. Rather, as is evident from the simplified outlines in ss 7 and 25 of the Act, its purpose is to provide a framework for current and former public officials to disclose allegations of misconduct that fall within the definition. Properly construed, the Act provides that framework for disclosures. It does not in terms invalidate or prohibit conduct falling within the definition of “disclosable conduct”. Specifically, it is not the case that s 29 imposes any obligation upon a decision maker not to act in “an arbitrary or unreasonable manner lacking any intelligible justification” which somehow enlivens or picks up subrule 6.07.1 as appears to be alleged in paragraph 23 of the amended statement of claim.

24. Moreover, the Commonwealth submitted that the amended statement of claim fails to disclose any reasonable cause of action. In circumstances where the plaintiffs’ claims are solely directed to obtaining relief in the form of a declaration to the effect that s 29 applies to prohibit and invalidate the Deputy Registrars’ conduct, the proceeding is doomed to fail.

25. Even assuming that Mr Culleton and Dr Peers could establish all of the facts alleged in the amended statement of claim, they could not obtain the relief they seek. That is because s 29 of the Act does not operate in the manner in which they allege. The Commonwealth submitted that, as a result, the amended statement of claim does not disclose a reasonable cause of action and ought to be dismissed under UCPR 13.4(1)(b).

26. The Commonwealth submitted in addition that the proceedings are an abuse of process. Subrule 6.07.2 contemplates that an order of the kind that results from a request made by a Registrar under subrule 6.07.1 prevents the filing of a document “without the leave of a Justice”. Subrule 6.07.3 then provides a mechanism by which leave may be sought using a Form 31 application. An application for leave is then determined by a Justice of the High Court: see Re Young (2020) 94 ALJR 448; [2020] HCA 13 at [10]-[13].

27. The appropriate course for any person wishing to take issue with a direction made under subrule 6.07.2 in respect of a document is to seek leave to file the document under subrule 6.07.3. The plaintiffs did not do so. The Commonwealth submitted that the commencement of separate proceedings in the Supreme Court of New South Wales seeking orders in respect of a request for a direction under subrule 6.07.1 therefore amounts to an abuse of process in the sense discussed in San Bao and Hunter. That is because it represents an attempt to circumvent the usual processes of the High Court to deal with the filing of frivolous or vexatious documents.

28. Finally, the Commonwealth submitted that the proceedings are otherwise frivolous or vexatious. The amended statement of claim does not articulate a legally coherent claim for relief and could not succeed were it to proceed to final hearing. The Commonwealth submitted in these circumstances that the proceedings should be summarily dismissed. The plaintiffs have already been given an opportunity to re-plead their case. The Commonwealth maintained that, having failed to do so in a legally comprehensible way, giving the plaintiffs any further grant of leave to amend would be futile.

Plaintiffs’ submissions

29. The plaintiffs made the following submissions.

30. Section 29 of the Public Interest Disclosure Act defines what is disclosable conduct and the persons to whom it applies. It is enough that the Court merely be satisfied that there is a prima facie cause of action for the matter to continue to final hearing.

31. Section 29(1)(b) describes the persons to whom disclosable conduct can apply and officers of the Commonwealth clearly answer that description. That is uncontroversial. “Disclosable conduct” is conduct engaged in by a public official, in connection with his or her position as a public official.

32. Section 29 describes what constitutes disclosable conduct in the provided table. As already noted, it relevantly includes conduct that constitutes maladministration, including conduct that is unreasonable, unjust or oppressive or that is an abuse of public trust.

33. The conduct of Commonwealth officers need only be capable of being captured by s 29 in order to constitute a justiciable controversy, namely conduct that is unreasonable, unjust or oppressive or otherwise an abuse of public trust.

34. The conduct of the Commonwealth officers when exercising a discretionary power under subrule 6.07.1 of the High Court Rules 2004 (Cth), in an unreasonable manner meaning failing to state any intelligible justification to exercise the rule, prima facie amounts to disclosable conduct.

35. The manner in which discretionary powers must be exercised is explained by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [24].

36. As stated, the exercise of subrule 6.07.1 is an exercise of a discretionary power. French CJ makes it clear that a discretion “allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion”.

37. Section 29 of the Act makes unreasonable conduct disclosable conduct as well as unjust conduct. Accordingly, the requirement on the Registrars of the High Court to exercise discretionary powers in a reasonable, fair and just manner is not only rooted in s 29 of the Act but also founded in case law.

38. French CJ goes on to say that discretionary powers are not to be exercised according to private opinion. By private opinion it is meant that only the Registrars know the reasons why they exercise the power, not the plaintiffs. The former Chief Justice then concludes by saying that the aforementioned limits, meaning reasonable and just conduct, are the limits within which an honest man or woman, competent to discharge the duties of his or her office, ought to confine themselves.

39. The Deputy Registrars have stepped outside those limits of reasonableness, justice and honesty in the exercise of a discretionary power. Such conduct is prima facie clearly disclosable conduct under s 29 of the Act and that is sufficient to create a cause of action. Whether that is ultimately proven to be the case is not relevant to there being a cause of action and is the very purpose of commencing the matter, which is for the Court ultimately to decide whether the Registrars have engaged in conduct that is disclosable conduct proscribed by s 29 of the Act.

40. The Deputy Registrars know or ought to know that the plaintiffs are then subject to subrules 6.07.2 and 6.07.3 which are conducted ex parte where they are not aware of the case against them nor are they given an opportunity to respond to it which amounts to a denial of procedural fairness which is an element of natural justice as per Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40].

41. By use of the word “unjust” the provision automatically imports the rules of natural justice. A failure to disclose why the rule was exercised is the “stuff of nightmares” and wholly inconsistent with a reasonable, fair, just and honest exercise of the duties of the office of Deputy Registrar of the High Court. Procedural fairness demands that a person be made aware of the case against them and that they be given an opportunity to respond to it. Absent such procedural fairness it amounts to the stuff of nightmares alluded to in South Australia v Totani [2010] HCA 39 at [285].

42. A judicial declaration does not require the prior existence of a cause of action, a wrong or injury. Importantly, it does not create rights capable of enforcement without a further order of the court. It just says something about something. Here, the Supreme Court would simply declare that the named Deputy Registrars answer the description of a person to whom s 29 of the Act applies and that they have engaged in disclosable conduct under it, namely, they have acted in an unreasonable, unjust and oppressive manner which undermines the public trust and confidence in the performance of the office of Registrars of the High Court.

43. The proceeding before the Court involves the determination of a question which is not hypothetical or abstract in that there is a real question involved and where the declaratory relief is directed to the determination of a legal controversy. The real question that arises for the Court to determine is whether the Deputy Registrars of the High Court have engaged in disclosable conduct pursuant to s 29 of the Act. The answer to that real question of law as to whether Deputy Registrars have engaged in such conduct produces some real consequences for the parties. That is, the Commonwealth being a model litigant accepts the declaration by the Court that its officers have engaged in disclosable under s 29 of the Act and would take action to ensure that its officers do not engage in such disclosable conduct. The consequence for the plaintiffs if the Deputy Registrars explain how and why they have exercised subrule 6.07.1 would be to either abandon the application if fatally flawed or clarify any misunderstandings or disprove any of the Registrars’ claims on points of law and case law.

44. The plaintiffs have standing to seek declaratory relief and that is uncontroversial because they have personally been affected by the conduct of the Deputy Registrars in relation to their exercise of subrule 6.07.1. The parties seeking the declaratory relief have a real interest to raise it and there is a proper contradictor, here the Commonwealth, consistent with the Hardiman principle that the Commonwealth itself argued for.

45. There is no obligation upon any person to apply for leave of a Justice under subrule 6.07.3, especially where such a hearing is ex parte and a denial of procedural fairness. Subrule 6.07.3 is concerned with whether leave to file a matter with the Court should be granted, whereas s 29 relates to the conduct of Commonwealth officers in the performance of their duties as Registrars. The former action is not a bar to the latter. Issues relating to disclosable conduct are heard and decided independently of any issues to file a matter. Therefore, the claim of abuse of process also fails.

Plaintiffs’ further submissions

46. After the hearing before me of the Commonwealth’s notice of motion to dismiss the proceedings concluded on Friday 7 August 2026, the plaintiffs emailed my Associate attaching what are described as “Plaintiffs [sic] Further Submissions Following Dismissal Hearing”. These were received by my Associate at 10.09am on Sunday 9 August 2026. These written submissions were not foreshadowed during the hearing and no leave to file or rely upon them was sought. Those submissions were in the following terms and are set out below in full.

“For clarity after the oral hearing, certain issues have to be properly explained. The oral hearing of the Commonwealth’s motion to dismiss the plaintiffs’ amended statement of claim conducted on 7 August 2026 has resulted in the Court misapprehending the nature of the arguments and the purpose and construction of s 29 of the Public Interest Disclosure Act. It exists for people to call out conduct by officials in public office that constitutes maladministration, including conduct that is unreasonable, unjust or oppressive, or an abuse of public trust. It is the mechanism for people to call this conduct out. The Court was misdirected by the arguments of the parties and this further submission seeks to correct those.

During the oral hearing, the Commonwealth introduced new arguments that it did not put into its written submissions and therefore we reserve the right to respond to that in writing. For example, the Commonwealth introduced the argument that s 29 is merely definitional.

First, that is incorrect. Section 29 is not purely definitional because it does not merely define conduct as being unreasonable, unjust or oppressive or an abuse of public trust. By adding the prefix ‘disclosable’ it goes beyond mere definitional and the provision is given further legal weight. The provision says conduct that is defined as unreasonable, unjust or oppressive or an abuse of public trust is conduct that can not only be defined but also made disclosable, and that conduct can be called out, for example in a legal proceeding such as this.

The mere fact that it is definitional does not immunise Commonwealth Officers from engaging in conduct defined as disclosable conduct. All provisions such as s 29 in any act in law are generally defined because how else can the courts determine whether that person satisfies that definition. For example, murder may be defined as ‘the taking of another person’s life’ and then the court has to determine whether that actually happened and therefore the crime of murder is proven. If murder did not have a penalty attached to it then it would be definitional but it does not take away from the fact that someone has committed the act of murder and that it is something that people should not engage in because it is wrong. The only difference here is that s 29 does not have a coercive element attached to it, but as explained the Commonwealth being a model litigant will abide by a court declaration stating that the two Deputy Registrars, the Commonwealth Officers, have engaged in disclosable conduct and will abide by that declaration and ensure that its officers do not engage in such conduct.

Another example is the Sex Discrimination Act 1984 (Cth) it states the following at s 22:

‘It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding’.

Gender identity is defined under the Act and the provision says that it is unlawful to be discriminated against for that attribute. The provision relies on the definition of gender identity without any specific penalty attached to it and therefore according to the Commonwealth’s logic, that too is merely definitional, but it does not mean that it cannot have any legal effect.

Essentially, the Commonwealth argues that even if their officers have engaged in conduct that is unreasonable, unjust or oppressive or an abuse of public trust, nothing can come of it because there is no penalty attached to it. That is to misunderstand what declaratory relief is because it does create a legal effect. The provision standing alone is not punitive but when combined with declaratory relief it does have legal effect. It does not necessarily need to have a prescribed penalty attached to it. It is enough that here, the conduct of Commonwealth officers can be disclosed or called out and by declaratory relief the conduct can be corrected and not engaged in in the future. The legal consequence of a person engaging in the conduct proscribed by the act is supplied by the court because the act does not necessarily do so. The remedy itself provides the legal consequence not stated in the provision, just as it does with gender identity. Although the act itself does not prescribe a penalty or legal consequence for gender identity discrimination, the courts can, for example by ordering a fine.

The purpose of the Public Interest Disclosure Act is expressly ‘An Act to facilitate disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector, and for other purposes’. The Commonwealth seeks to defeat the purpose of the Act and render it nugatory by reducing to a mere definition devoid of any legal consequence and that its officers should not be investigated and their conduct should not be called out because it is merely definitional which is contrary to the purpose and intent of the Act itself. The conduct of public officers is defined and then made disclosable for example in a legal proceeding such as this, consistent with the purpose of the Act which is to ensure Commonwealth officers captured by it do not engage in such conduct. The court then by declaration provides the legal consequences.

In the oral hearing, the Commonwealth also introduced new case law from the High Court Plaintiff S32/2026 v Minister for Immigration and Citizenship [2026] HCA 27. The Commonwealth has been unclear how it supports its case and the relevance of which it failed to clearly articulate.

Procedural fairness requires that a person be made [aware] of the case against them and be given a proper opportunity to respond. The Commonwealth cannot in oral argument introduce new legal argument to surprise or disadvantage the plaintiffs where they are forced to respond in the moment without the opportunity to provide a considered written response. Given the importance of the issue before the Court this further submission must be considered.

Furthermore, we request that the Justice outline what argument he may consider fatal to the plaintiffs’ case in order they may be given a reasonable opportunity to respond to it.

First, the precondition necessary to seek leave of a Justice first had under subrule 6.07.3 is preconditioned on the exercise of subrule 6.07.1 and on the same criteria as those that inform the action of the Registrar under subrule 6.07.1. Gageler J, as he then was, in Re Young [2020] HCA 13 at [11] made that clear. He stated:

‘The discretion to refuse leave on an application made under r 6.07.3 of the High Court Rules falls to be exercised by a Justice by reference to the same criteria as those which inform the action of the Registrar under r 6.07.1….’

If a Justice of the Court under subrule 6.07.3 decides the issue by reference to the same criteria as those that inform the action of the Registrar under subrule 6.07.1, and the Registrar fails to disclose that [sic, those] criteria, how would a Justice of the Court properly exercise subrule 6.07.3, and rely on that [sic, those] criteria if it is undisclosed? Clearly there is some communication going on between the Justice and the Registrar and the applicant is completely left out of that process, how can that be said to be an honest exercise of the power? How can it be stated that kind of conduct is reasonable, just, fair and honest? If the criteria can be disclosed to the Justice then why can’t the criteria be equally disclosed to the applicant? Clearly the Registrar is making the Justice of the Court aware of the criteria and choosing not to make the applicant aware of it [sic, them], therein lies another aspect of the disclosable conduct under s 29.

If the Registrars do not disclose the criteria relied upon under subrule 6.07.1 to exercise the discretion, which is [sic, are] the same criteria by which a Justice is to exercise subrule 6.07.3 that [sic, those] criteria not disclosed provides [sic, provide] a cause of action under s 29.

Furthermore, Gageler J continues at [13] in Re Young to state:

‘…Needless to say, exercise of the discretion to nip a proceeding in the bud is appropriate only in the clearest of cases.’

That statement relates back to the criteria relied upon to exercise the rule. If that [sic, those] criteria is [sic, are] not disclosed how can the Registrar say they have exercised the rule honestly and in the clearest of cases and not according to private opinion? The answer is: they cannot.

Powers exercised under subrule 6.07.3 do not cure the conduct of the Registrars under subrule 6.07.1. The true purpose of s 29 is to ensure, here officers of the Commonwealth, behave in an honest way when exercising the powers of the office. The duty of Registrars of the High Court requires that those powers exercised under subrule 6.07.1 are done so in an honest manner, meaning not according to private opinion, but rather in a fair, just and reasonable way. That requirement is imposed on these officers independently of whether or not they are required to give reasons under subrule 6.07.1. Any honest person exercising subrule 6.07.1 would disclose the criteria to justify its exercise and that [sic, those] criteria is [sic, are] also relied upon by a Justice under subrule 6.07.3.

The existence of judicial review of a decision made under subrule 6.07.1 says nothing about the conduct of the Registrars. Whether or not that decision is correct is immaterial. It is the manner in which the action has been taken where there is a lack of an honest attempt to perform the duties of the office to which s 29 is directed. It is about the duty the office imposes on the Registrars to act honestly, and s 29 provides the mechanism to call out, or disclose conduct that is unreasonable, unjust and oppressive. Whether or not a Registrar correctly enlivens the rule is not relevant under s 29 so long as they make an honest attempt to explain why they have exercised the rule rather than the correctness of the decision made under it.

Section 29 operates to maintain the public’s confidence in public officials exercising their powers. The exercise of subrule 6.07.3 cannot be enlivened unless subrule 6.07.1 has been exercised otherwise the application would simply just be filed without the need to seek leave of a Justice first had. The principles of honesty in a public office are there to ensure powers such as those under subrule 6.07.1 are not exercised in an arbitrary, unreasonable, unfair or unjust manner. This is the proper interpretation of s 29. It has nothing to do with an abuse of process and everything to do with the honest exercise of duties by a public official.

The Commonwealth is basically arguing that there is no requirement upon its officers to exercise their powers in an honest way. This is where a cause of action lies, the manner in which public officers exercise their powers. There is a real controversy, it is not hypothetical and the mere existence of judicial review for a decision made under subrule 6.07.1 does not cure nor is the review process directed to the manner in which powers are exercised by public officials.

The Commonwealth in essence argues, that unless its officers are forced by law to be honest, they won’t be. Therefore, their default setting is dishonesty in a public office. The imposition upon the Registrars to explain their actions under subrule 6.07.1 does not require that to be found in statute. The imposition arises from the duties the office itself imposes upon them, to act honestly, fairly, transparently and reasonably, so as to maintain the public’s confidence in public officers. An honest person would disclose the criteria under which they have exercised the rule, and disclosure of that [sic, those] criteria, is required for the Justice to exercise subrule 6.07.3. That [sic, those] criteria cannot be according to private opinion, because they are acutely aware that if a person proceeds to seek leave of a Justice under subrule 6.07.3, they would not be able to meaningfully write a submission when seeking leave of a Justice first had. Without explaining the criteria under which subrule 6.07.1 has been exercised, the plaintiff is left in the dark and must guess or be a mind reader as to why the subrule 6.07.1 was enlivened and they know that the process that the plaintiffs are then subject to under subrule 6.07.3 is a denial of natural justice of which procedural fairness is an element. Section 29 automatically imports by the use of the word unjust, the rules of natural justice.

How can a person write a meaningful submission for leave of a Justice first had, where they are not aware of the case against them nor are they given any opportunity to respond to it? That is where the unfairness and the injustice lies and in truth it is the exercise of subrule 6.07.1 by the Registrars based solely on private opinion that has created that condition. It is not a question of the decision under subrule 6.07.1. It is a question of explaining the decision in the first place. The plaintiffs’ claim is that there has been a lack of an honest attempt to perform the duties of the office because no person seeking to exercise those powers would do it merely on private opinion without disclosing the criteria upon which they relied. That says nothing about the correctness of a decision under subrule 6.07.1 that would make it subject to judicial review. The plaintiffs are not saying the Registrar is right or wrong under s 29; they are saying they have not disclosed the criteria under which they took action under subrule 6.07.1.

The Registrars have knowingly and deliberately withheld the criteria under which they have exercised subrule 6.07.1, which is [sic, are] the same criteria as a Justice relies upon under subrule 6.07.3. Thereby lies the failure of an honest attempt to exercise the duties of their office, and such conduct amounts to disclosable conduct under s 29. There is no principle in law whatsoever that prevents a Registrar from disclosing the criteria under which they are enlivening subrule 6.07.1, they simply choose not to and that conduct is unreasonable, unjust and oppressive and that makes it disclosable conduct under s 29. Even if Registrars are not required to explain reasons for their decisions under subrule 6.07.1, that does not prevent them from giving those reasons. In other words, if they are not forced by law to be fair or just then they will not be fair or just. Enlivening subrule 6.07.1 by criteria undisclosed is the stuff of nightmares. How is it fair, reasonable and just for a person to write a submission under subrule 6.07.3 on criteria undisclosed which the Registrar has in their possession but just chooses not to disclose them?

The argument by the Commonwealth that s 29 is merely definitional does not defeat the plaintiffs’ claim under s 29. If for example s 29 merely defines disclosable conduct absent coercive legal force, that does not mean there are no foreseeable consequences for the Commonwealth or that there is no utility. The Commonwealth, a model litigant, will abide by the courts declaration that the Commonwealth officers satisfy the definition of disclosable conduct. Although the remedy of declaratory relief is not a coercive order by the court, the Commonwealth a model litigant will abide by it and ensure that the conduct of its officers do not satisfy the definition of ‘disclosable conduct’ when exercising powers under their office. Therefore, there are foreseeable consequences for the Commonwealth for conduct defined as disclosable conduct under s 29. Even though s 29 might not impose a legal effect as such, it is not to say that there are no foreseeable consequences for the Commonwealth. The Commonwealth will ensure that the conduct of its officers do [sic, does] not satisfy the meaning of disclosable conduct under s 29 when exercising powers in relation to subrule 6.07.1.

The Commonwealth has argued that under subrule 6.07.1 the Registrars are not required to disclose the ground or criteria by which they have exercised the subrule. The Commonwealth incorrectly makes that assertion because that requirement is imposed upon them under statute. The Commonwealth claims that the plaintiffs’ application or amended statement of claim under s 29 is frivolous, vexatious and an abuse of process and therefore should be dismissed under UCPR 13.4(1). The plaintiffs argue that the conduct of the Registrars of subrule 6.07.1 amounts to disclosable conduct under s 29 because it is unreasonable, unjust and oppressive because they do not disclose the grounds under which they exercise subrule 6.07.1 yet a Justice under subrule 6.07.3 relies on the same criteria no doubt disclosed to them by the Registrars, but not the applicants.

The Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) references vexatious proceedings which includes an abuse of process or frivolous or ill-conceived applications under Division 1, 37AM Definitions.

37AM Definitions

(1) In this Part:

vexatious proceeding includes:

(a) a proceeding that is an abuse of the process of a court or tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

This Act defines the legal requirement on the Registrars and High Court Judges that no action can be taken under subrule 6.07.1 without the affected party being made aware of the criteria by which a Registrar seeks to refuse a document for filing by enlivening subrule 6.07.1 and give them an opportunity to respond to it:

37AO Making vexatious proceedings orders

(3) The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or Territory;

(b) the Registrar of the Court;

(c) a person against whom another person has instituted or conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

Furthermore, Justices of the High Court in exercising subrule 6.07.3 must under the Access to Justice (Federal Jurisdiction) Amendment Act not make any decision under subrule 6.07.3 without the applicant being made aware of the case against them and being given an opportunity to respond to it:

37AO Making vexatious proceedings orders

(4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

The Access to Justice (Federal Jurisdiction) Amendment Act provides the legal obligation upon the Registrars and Justices of the High Court where the grounds or the criteria upon which the High Court Rules are exercised to be disclosed and the person to be made aware of the arguments against them and be given an opportunity to respond to it and is consistent with s 29, namely conduct that is unreasonable, unjust and oppressive being disclosable conduct.

Any reasonable and fair-minded observer of the proceeding would know and feel that an injustice is happening here, and this Court cannot sit idly by and allow it to occur. The case in essence is fundamentally about the rule of law and about public officials behaving in an honest manner which of necessity includes criteria upon which they exercise powers being made known to affected parties.”

Consideration

47. It is apparent that the plaintiffs’ complaint concerns conduct of the Deputy Registrars which they maintain was unreasonable, unjust or oppressive and an abuse of public trust. That conduct presumably consists of no more and no less than the actions of Deputy Registrars Griffin and Bennett when seeking separate directions from a Justice of the High Court pursuant to subrule 6.07.1 in relation to documents lodged by the plaintiffs that appeared to the Deputy Registrars to be an abuse of process or which were vexatious or fell outside the jurisdiction of the Court. The complaint seems to be limited to the proposition that the Deputy Registrars failed to explain to the plaintiffs why they believed that their documents should not be filed. Apart from that, the plaintiffs do not identify any conduct in either the amended statement of claim or their written submissions that is said to be unreasonable, unjust or oppressive or an abuse of public trust. Some important and fundamental things therefore need to be understood.

48. First, a Registrar making a referral subrule 6.07.1 is not making a final or binding decision that the documents lodged with the High Court by the plaintiffs were an abuse of process or were vexatious or fell outside the jurisdiction of the Court. The referral power under the subrule is enlivened only if the documents appear to the Registrar to fit one of those descriptions. The rules do not give the Registrar any power to reject the documents or to determine their fate should they relevantly appear to the Registrar to qualify. On the contrary, the subrule makes it clear that any decision having, or potentially having, the consequence that the plaintiffs’ documents could be rejected on a final basis is by necessary implication specifically reserved to a Justice of the High Court.

49. Secondly, the plaintiffs have in any event failed anywhere in their amended statement of claim or their written submissions to plead or to explain why the Deputy Registrars’ conduct in referring the documents to a Justice of the High Court pursuant to the subrule is or was somehow unreasonable, unjust or oppressive and an abuse of public trust. It is nowhere alleged or submitted that the Deputy Registrars were not duly performing their assigned function in considering or assessing the plaintiffs’ documents as they were required to do by subrule 6.07.1. Nor do the plaintiffs allege or submit that the making of a decision to refer the plaintiffs documents to a Justice of the High Court pursuant to the subrule was not one of those functions.

50. Thirdly, if it be the plaintiffs’ case that the formation of any opinion by the Deputy Registrars, to the effect that the plaintiffs’ documents appeared to be an abuse of process or were vexatious or fell outside the jurisdiction of the Court, must have been unreasonable, unjust or oppressive and an abuse of public trust, the plaintiffs do not say how or why that is so, nor do they indicate or explain by reference to any suggested standard or benchmark how they arrived, or indeed how anyone should arrive, at such a conclusion. The only explanation would appear to be an ipse dixit: that is, the decision of the Deputy Registrars to refer the plaintiffs’ documents to a Justice of the High Court was unreasonable, unjust or oppressive and an abuse of public trust simply because, and for no particular reason other than that, the plaintiffs say so.

51. That remains the position, in my view, notwithstanding the plaintiffs’ attempt to rely upon what was said by French CJ in Minister for Immigration and Citizenship v Li at [24]. It may be accepted as uncontroversial that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion. The difficulty confronting the plaintiffs, who place reliance on these words, is that they do not explain, far less establish, in any comprehensible way how it is said that the Deputy Registrars’ exercise of discretion failed this test, apart from not providing reasons to which the plaintiffs acknowledge they were not entitled in any event.

52. Although the plaintiffs do not make any point about it, there is at least scope for an argument that the words “which were vexatious or fell outside the jurisdiction of the Court” are not limited by whether they appeared to be vexatious or fell outside the jurisdiction of the Court but permitted the Registrar to make his or her own finding about it. However, nothing can turn on the distinction. Whether the words are subject to a mere appearance or are matters for the Registrar to decide, the result of the relevant conclusion is the same in either case: the documents must be referred to a Justice of the High Court. Nothing that the Registrar is empowered or required to do can have any effect upon the plaintiffs’ position. In those circumstances, no decision made by a Registrar pursuant to subrule 6.07.1 can cause or create an injustice, far less a substantial injustice, for the plaintiffs.

53. Fourthly, the plaintiffs make reference to the rules of natural justice and pray in aid subrules 6.07.2 and 6.07.3 in support of a submission that the Deputy Registrars knew or ought to have known that the plaintiffs were subject to these rules “which are conducted ex parte where they are not aware of the case against them [sic!] nor are they given an opportunity to respond to it which amounts to a denial of procedural fairness which is an element of natural justice”.

54. The complete rule is in these terms:

6.07 Refusal to issue or file a document

6.07.1 If a writ, application, summons, affidavit or other document (the document ) appears to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court, the Registrar may seek the direction of a Justice.

6.07.2 The Justice may direct the Registrar to issue or file the document, or to refuse to issue or file the document, without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

6.07.3 An application for leave for the Registrar to issue, or for leave to file, a document that is subject to the direction of a Justice under subrule 6.07.2:

(a) must be in Form 31; and

(b) must not be served on any person, unless the Court or a Justice otherwise orders.

55. I appreciate and accept that it will be my fault entirely, but I completely fail to understand the plaintiffs’ submission, which was as follows:

“12. By use of the word unjust the provision automatically imports the rules of natural justice. A failure to disclose why the rule was exercised is the ‘stuff of nightmares’ and wholly inconsistent with a reasonable, fair, just and honest exercise of the duties of the office of Deputy Registrar of the High Court. Where procedural fairness demands that a person be made aware of the case against them and be given an opportunity to respond to it. Absent such procedural fairness it amounts to the stuff of nightmares alluded to at [285] in South Australia v Totani [2010] HCA 39, cited below:

[285] ‘T**he stuff of nightmares’. The Full Court relied on the proposition that ‘a denunciation on grounds that are not disclosed is the stuff of nightmares.’ It quoted those words as used by Lord Hope of Craighead in Secretary of State for the Home Department v AF (No 3). He attributed them to Lord Scott of Foscote in A v Secretary of State for the Home Department. Lord Scott said:

‘Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated ... with the United Kingdom.’” [Plaintiffs’ emphasis.]

56. Putting aside the hyperbole, I will assume (although not confidently) that the plaintiffs are complaining in this context that the Deputy Registrars did not give them either an opportunity to be heard before referring their documents to a Justice of the High Court and/or that the Deputy Registrars did not furnish reasons for the course that they took. With great respect, that is as may be. That is because the whole scheme of the rule is centred around the availability of an application for leave to file a document that is subject to the direction of a Justice under subrule 6.07.2. As has been referred to already, the plaintiffs have never sought such leave for reasons that are neither given nor explained. Somewhat ironically, I would expect that any judicial refusal of a grant of leave would itself have been subject to the requirement that reasons for the refusal be provided. That is in contrast to what the plaintiffs have pleaded in paragraph 9 of the amended statement of claim which acknowledges that that reasons do not need to be given by a Registrar in the exercise of a function pursuant to subrule 6.07.1.

57. Fifthly, the plaintiffs emphasise that the only remedy they seek is a declaration that the Deputy Registrars’ conduct is unreasonable, unjust or oppressive and an abuse of public trust. They submit that they have standing to seek declaratory relief because they have personally been affected by the conduct of the Deputy Registrars in relation to the exercise of subrule 6.07.1. However, that is not so. The plaintiffs’ application for relief is solely directed at obtaining a declaration to the effect that s 29 of the Public Interest Disclosure Act applies to prohibit or invalidate the Deputy Registrars’ conduct.

58. That section does no such thing. As the Commonwealth’s submissions have explained, s 29 is a purely definitional provision. Its function is to identify “disclosable conduct”, a defined term. The Act does not operate to prohibit disclosable conduct or render it invalid. Its purpose is on the contrary merely to provide a framework for current and former public officials to disclose allegations of misconduct that fall within the definition. In that way the Act operates to facilitate the making of disclosures. In particular, s 29 does not in terms invalidate or prohibit conduct falling within the definition of “disclosable conduct” or impose any obligation upon a decision maker, such as a Deputy Registrar, not to act in “an arbitrary or unreasonable manner lacking any intelligible justification”. Section 29 has nothing to do with, or to say about, the appropriateness or otherwise of the Deputy Registrars’ exercise of their subrule 6.07.1 functions with respect to the plaintiffs’ documents in this case.

59. Although the plaintiffs have argued valiantly, but in my view erroneously, that there is some significant justiciable issue for me to decide that is lurking somewhere in the interaction between r 6 of the High Court Rules and s 29 of the Public Interest Disclosure Act, their real complaint is that they are miffed because two Deputy Registrars “rejected” their documents without saying why. So much is apparent from the following (final) paragraph of their written submissions dated 13 July 2026:

“19. As a final note the Commonwealth’s inclusion as a party to this proceeding has proven to be unhelpful to the court in that the Commonwealth is not interested whatsoever in getting to the truth or the proper administration of justice and its only purpose for intervening in the matter is to ensure that its officers are never held to account for their unreasonable, unjust or oppressive conduct so that they are free to continue on in such a dishonest manner. The Commonwealth cannot fathom why its Deputy Registrars have been brought to justice under s 29 PID Act that in their mind it is perfectly acceptable to exercise the High Court Rules without any intelligible justification and then knowingly subject persons to subsequent proceedings that are an absolute denial in procedural fairness. This matter brings to light how far removed the Commonwealth is from the way its officers deal with the general public and clearly it does not care either. What harm would there be to the Commonwealth if its officers spent a few minutes explaining why they believe that the application document should not be filed because it appears to be an abuse of the process of the Court, to be frivolous or vexatious or fall outside the jurisdiction of the Court then it is their duty to say why it may satisfy those things and if they cannot then they cannot exercise the rule to begin with which prohibits arbitrary or unreasonable conduct. That is what an honest person seeking to exercise the duties of the office would do. Here the Commonwealth is asking the court to allow its officers to do the opposite.” [My emphasis.]

60. Perhaps the obvious answer to the rhetorical question posed as, “What harm would there be” etcetera, is to refer the plaintiffs to the leave provision within the very High Court rule that is at the centre of their concerns.

61. Finally I note that I have reviewed and considered the plaintiffs’ further submissions emailed last Sunday to my Associate. It is sufficient if I indicate that those submissions contain nothing that persuades or convinces me that I should alter the opinion I have formed about the outcome of the Commonwealth’s application.

Conclusion

62. In my view the plaintiffs’ proceedings have no prospects of success. Their amended statement of claim does not articulate a viable cause of action because the plaintiffs do not have a viable cause of action. It is in the circumstances entirely inappropriate to allow the proceedings to continue. However, it is sufficient for present purposes if I simply make a finding that the amended statement of claim discloses no reasonable cause of action and is otherwise frivolous or vexatious. I shall refrain from expressing a view about whether it is also an abuse of process. The plaintiffs’ pleading is not in my view capable of resurrection by any further iteration of the amended statement of claim. I therefore decline to grant the plaintiffs leave further to amend the already amended statement of claim.

63. It follows that the proceedings should be dismissed.

64. The Commonwealth has sought costs in the event that it was successful. Dr Peers and Mr Culleton both oppose that result and contend that I should make no order as to the costs of the proceedings. That opposition proceeds upon the basis that the Commonwealth’s involvement in the proceedings was only pursuant to a grant of leave to intervene and that its involvement in the circumstances was limited to a challenge to the viability of the plaintiffs’ pleaded case.

65. Costs are discretionary. The plaintiffs have represented themselves and would appear clearly to have done so without the benefit of professional legal advice or assistance. That notwithstanding, they have conducted the proceedings to date in an efficient manner and in a way that has kept costs to a minimum. It is appropriate in my view that I make no order that they pay the Commonwealth’s costs.

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