Wu v Registrar Donovan [2025] FCA 647

I, the Applicant, Jianhua Wu, seeks clarification of the judgements delivered by this Court on 6 December 2024 (December 6 Judgement) in relation to the matter above.

About the Application

1. This is an application seeking clarification of the December 6 Judgement.

2. This is also an application brought forward as per Rule 39.05 of the Federal Court Rule 2011.

Extension of Time

1. Should the Court find this application is filed outside time limit, I seek the Court's leave to set aside that time limit and to accept this application.

1. Thereafter in his interlocutory application Mr Wu sought "clarification" on aspects of the "December 6 Judgement" which is a reference to orders made in proceeding NSD 1449 of 2023 on 6 December 2024: see Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404. Mr Wu set out those matters on which he seeks clarification in Wu v DSMJ.
2. In the interlocutory application Mr Wu seeks the following by way of relief (as written):

The Federal Court of Australia failed to properly address the appellant's Grounds of Appeal.

41. The order 2 of the orders delivered on 6 December 2024 be amended to:

The appeal be allowed or The appeal be allowed in part.

The order[2] of the Federal Circuit and Family Court of Australia (Division 2) made on 21 November 2023 be set aside.

Pursuant to Section 53A of the Federal Court of Australia Act 1976(Cth), the matter be referred forthwith to mediation by a Registrar of the Court.

In the event that the matter does not resolve at or shortly after the mediation, the matter be remitted to the Federal Court of Australia for a new trial.

The Appellant be granted a cost certificate pursuant to Sections 7A and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) where the Appellant succeeds on a question of law in any further legal action he would take.

1. On 17 March 2025 Registrar Donovan refused to accept the interlocutory application for filing. Her letter dated 17 March 2025 addressed to Mr Wu recording her decision included:

Under rule 2.26 of the Federal Court Rules 2011, a document may be refused for filing if a Registrar is satisfied that the document is an abuse of process of the Court, or frivolous or vexatious.

The meaning of the terms "frivolous" and "vexatious" were considered by Justice White in Ferdinands v Registrar Cridland [2021] FCA 592 at [27] to [30]. A matter that is frivolous may be described as one that is "without substance or groundless or fanciful" and a matter that is vexatious is an abuse of the process of the Court. The term abuse of process includes an application which has no cause of action properly stated and no prospects of success.

Your Interlocutory Application dated 7 February 2025 ("IA") seeks clarification of Justice Kennett's Judgment dated 6 December 2024 in Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404. This judgment was delivered on 6 December 2024 by Justice Kennett, sitting as a single judge in the appellate jurisdiction of this Court.

The IA seeks the Court to reconsider the evidence previously presented and the reasons provided by Justice Kennett that led to the final disposition of the appeal on 6 December 2024.

Additionally, the IA questions Justice Kennett's failure to address several grounds in the appeal.

Justice Kennett's order was a final order in the proceedings. Any challenge to those findings is constitutes an appeal. An appeal cannot be conducted by way of filing an interlocutory application in the proceedings. New proceedings must be commenced - as an appeal.

Please be informed that you have exhausted your appeal rights at the Federal Court of Australia ("FCA").

You should seek legal advice regarding any appeal of the decision as the time period for making such an application has likely expired.

As the Decision resulted in final orders, I consider that the Documents are on their face frivolous or vexatious. It would constitute an abuse of process of the Court if they were accepted for filing. As such, I refuse to accept the Documents for filing.

1. On 20 March 2025 Mr Wu filed an originating application for judicial review of the Registrar's decision refusing the filing of the interlocutory application. In that application Mr Wu seeks orders that the Registrar's decision be set aside and that the interlocutory application be accepted for filing and an order that he "be granted a costs certificate where [he] succeeds on a ground of [his] application" for judicial review or for the Court to pay him money directly "or at least, to refund [to Mr Wu] the money that he paid to the Court for this application".
2. Registrar Donovan has filed a submitting appearance. Mr Wu informed the Court that he was content for his application to be determined on the papers.

1. The following background is substantially taken from the findings made in Wu v DSMJ.
2. On or about 24 December 2021 DSMJ Pty Ltd dismissed Mr Wu from his employment.
3. On 10 April 2022 Mr Wu filed an application in the Fair Work Division of the Federal Circuit and Family Court of Australia (Circuit Court). On 10 December 2022 he amended his claim. He sought compensation and the imposition of pecuniary penalties against the respondents in that proceeding, DSMJ, Joe Colon, Megan Farrell, Liong Lim and Rohan Tronson.
4. On 21 November 2023 the Circuit Court made a declaration that DSMJ was involved in a contravention of s 45 of the Fair Work Act 2009 (Cth) in that it failed to make a copy of the Professional Employees Award 2020 available to Mr Wu and made orders for the filing of evidence and submissions in relation to penalty for that contravention. The Circuit Court dismissed all other claims.
5. Mr Wu appealed to this Court.
6. The hearing of the appeal took place on 16, 17 and 19 September 2024. On 6 December 2024 the Court made the following orders:
   1. Leave to appeal be granted.
   2. The appeal be dismissed.
   3. Any party that wishes to seek an order for costs is to file written submissions of no more than five pages, together with any evidence on which it wishes to rely on the question of costs, within 14 days.
   4. If submissions are filed pursuant to order 3, any other party may file responsive submissions of no more than five pages, together with any evidence on which it wishes to rely, within a further 14 days.
   5. The question of costs be dealt with on the papers if an order for costs is sought in accordance with order 3.

1. Mr Wu's application for judicial review provides under the heading "details of claim" (as written):

The Applicant is aggrieved by the decision because:

1. Rules 39.05 of the Federal Court Rules 2011 (Rules) ) provides the Court the power to varying or setting aside judgement or order after it has been entered. Justice Kennett has not made any decision under or concerning Rules 39.05. And he did not say he refused to vary or setting aside judgment or order which he delivered on 6 December 2024 as per Rules 39.05.
2. Registrar Helen Donovan did not consider, or slipped, Rules 39.05 when making the decision dated 17 March 2025.
3. Refusal to accept the IA constitutes the Court failed to offer me procedural fairness where the Court accepted and heard application under Rules 39.05 in other matters, and deprived me the opportunity to seek the Courts making orders per Rules 39.05.
4. Failure to hear the IA constitutes the Court failed to offer me judicial fairness.

1. Mr Wu then sets out his grounds of review as follows (as written):
   1. Seek clarification of published reasons or/and orders, where there is ambiguous or meanings unclear, is a standard and a proper procedure; further,
   2. Rule 39.05 of the Federal Court Rules 2011 says the Court may vary or set aside a judgement or order after it has been entered for the various outlined factors.
   3. An application pursuit varying or setting aside judgement or order as per Rule 39.05 of the Federal Court Rules 2011 is a common practice at Federal Court of Australia. I name a few of the recent matters which considered that Rule, or varied judgements or orders because of a power from that rule:
      1. Tucker v McKee (No 2) [2022] FCA 342;
      2. BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 106;
      3. O'Neill v Deputy Commissioner of Taxation [2021] FCA 322
      4. Larmar Services Pty Ltd v Commissioner of Taxation [2023] FCA 1366
   4. At [1] of the IA, I stated expressly that the application seeks clarification from the Court.
   5. Paragraphs [4] - [32] of the IA explicitly seeks Justice Kennett's clarification to the judgement he delivered on 6 December 2024 (December 6 Judgement) in the matter NSD 1449/2023, or facts that he might have accidentally slipped or omitted.
   6. At [2] of the IA, I stated expressly that the application brought forward as per Rule 39.05.
   7. Paragraphs [34]-[42] of the IA seeks varying or setting aside judgement or order Justice Kennett delivered on 6 December 2024 as per rule 39.05 of the Federal Court Rules 2011.
   8. Paragraphs [33] of the IA seeks clarification if Grounds 9 and 10 were addressed for it was unclear from the published reasons.
   9. Registrar statements that the IA seeks the Court to reconsider the evidence previously presented was incorrect, at least was inaccurate. At circumstance, the IA seeks clarification from Justice Kennett concerning the facts he might have slipped or omitted.
   10. Registrar's statements that the IA seeks the Court to reconsider the reasons provided by Justice Kennett was incorrect. At circumstance, the IA seeks clarification from Justice Kennett where published reasons are unclear.
   11. Registrar statements "Justice Kennett's order was a final order in the proceedings. Any challenge to those findings is constitutes an appeal" are incorrect, or irrelevant, or misleading. Rule 39.05 of the Federal Court Rules 2011 (Rules) provides the Court the power to varying or setting aside judgement or order after it has been entered. Justice Kennett has not made any decision under or concerning Rules 39.05. And he did not say he refused to vary or setting aside judgment or order which he delivered on 6 December 2024 as per Rules 39.05.
   12. The IA was not an appeal. Where it seeks varying or setting aside judgement or order which Justice Kennett delivered on 6 December 2024, those were made as per Rules 39.05, hence, the IA was lodged, and a proper court procedure. An appeal is not must for the orders that I sought (Justice Kennett can set aside the orders he could not make).
   13. Registrar Helen Donovan did not consider, or slipped, Rules 39.05 when making the decision dated 17 March 2025.
   14. Registrar Helen Donovan did not have power to decide whether the orders that I sought could be varied as per Rules 39.05.
   15. Refusal to accept the IA constitutes the Court failed to offer me procedural fairness where the Court accepted and heard application under Rules 39.05 in other matters, and deprived me the opportunity to seek the Courts making orders per Rules 39.05.
   16. Failure to hear the IA constitutes the Court failed to offer me judicial fairness.
   17. Additionally, the IA is a necessary for avoiding a possible appeal to High Court of Australia. Where the IA is not heard, an appeal to High Court of Australia would be unavoidable. The High Court of Australia has limited resource. The FCA is created to alleviate the burden of the High Court of Australia, or to assist the High Court of Australia. Refusal to accept and to hear the IA constates a failure of carrying out the FCA's public duties.
   18. Registrar was incorrect in saying the IA was not signed.

1. Rule 2.26 of the Federal Court Rules 2011 (Cth) provides that a registrar may refuse to accept a document if the registrar is satisfied that the document is an abuse of process of the Court or is frivolous or vexatious on the face of the document or by reference to any documents already filed or submitted for filing with the document.
2. In Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 Halley J summarised the principles that apply to a decision made by a registrar under r 2.26 of the Rules at [40]-[42]:
   1. It is well established that a decision by a registrar, pursuant to r 2.26 of the Rules, is administrative in nature and thereby susceptible to judicial review under the ADJR Act: Markwell v Registrar of the Federal Court of Australia [2022] FCA 954 at [20] (Cheeseman J), citing with approval Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [49] (Marshall, Cowdroy and Buchanan JJ); Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [32] and [41] (Barker, Banks-Smith and Colvin JJ).
   2. A registrar does not, when refusing to accept documents for filing pursuant to r 2.26 of the Rules, make any substantive assessment or judgment of the merits of the claims in the proposed proceeding: Ferdinands v Registrar Cridland [2021] FCA 592 at [12] (White J); Rana v Registrar Cridland [2021] FCA 848 at 10 (White J); Markwell at [39]. A registrar does not exercise judicial power in refusing to accept a document for filing, pursuant to r 2.26: Wijaya v Judicial Registrar of the Federal Court [2023] FCA 317 at [12] (Wheelahan J). The registrar is instead ensuring compliance with procedural requirement, by refusing to accept for filing documents which "on their face" are frivolous or vexatious or would be an abuse of the Court's process.

42 In Nyoni, the Full Court of this Court said at [33]:

The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry...It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of this Court and for other parties to be required to attend.

1. Mr Wu relies on his written submissions.
2. By way of introduction Mr Wu sets out the background to his attempt to file the interlocutory application and its content. He explains that he expressly stated therein that the interlocutory application was brought pursuant to r 39.05 of the Rules and that at [4]-[33] of the interlocutory application he sets out the matters that Kennett J may have accidentally slipped or omitted in making his decision and those grounds of appeal that his Honour might not have addressed, which also constitute a slip or omission. At [34]-[42] of the interlocutory application Mr Wu sets out the variations he seeks to Wu v DSMJ and the orders sought. He submits that whether those variations and orders can be made is a matter for Kennett J and that registrars of this Court do not have such power, and it is not a matter for me to decide.
3. Mr Wu submits that Registrar Donovan incorrectly rejected the filing of the interlocutory application for the following reasons:

(1) she did not consider r 39.05 of the Rules. Mr Wu says that he expressly told the Court that his application was brought pursuant to that rule;

(2) she did not have power to decide if the orders sought in the interlocutory application could be made pursuant to r 39.05. That was a matter for Kennett J to decide;

(3) Registrar Donovan's statement that the application seeks the Court to reconsider the evidence previously presented was incorrect and, at least, inaccurate. Mr Wu says that in the interlocutory application he "outlined facts which Justice Kennett might have slipped or omitted". He contends that whether "Justice Kennett slipped or omitted the outlined facts that is for Justice Kennett to tell or to clarify" and "whether there would be a different outcome should those outlined slip or omission" be considered properly, is again a matter for Kennett J to decide; and

(4) Registrar Donovan's statement that "... Any challenge to those findings is constitutes an appeal ..." was incorrect or irrelevant. Mr Wu contends that the orders sought at [34] -[42] of the interlocutory application were sought pursuant to r 39.05 which allows the Court to vary or set aside a judgment or order after it has been entered and that an appeal is not necessary where the grounds to vary or set aside orders or judgments that have been entered come within the meaning of r 39.05.

1. Mr Wu submits that Kennett J has not made any decision under or concerning r 39.05 of the Rules and he has not refused to vary or to set aside the orders made on 6 December 2024. He contends that refusal to accept the interlocutory application constitutes a denial of procedural fairness in circumstances where the Court has heard applications pursuant to r 39.05 on other matters and that such applications are common practice for the Court. Mr Wu says that he has been denied the opportunity to seek relief pursuant to r 39.05 of the Rules.
2. Mr Wu submits that proceeding NSD 1449 of 2023 was an appeal matter heard by a single judge of this Court and that an appeal from Wu v DSMJ is to the High Court of Australia, subject to a grant of special leave to appeal. Mr Wu contends that for the High Court to grant special leave the matter must be of public interest and that at this stage, the matters in the interlocutory application largely fall into the category of slip or omission. He says that while the Court has the power and procedure to fix errors arising from a slip or omission pursuant to r 39.05, it is not necessary to appeal to the High Court and that Court is very unlikely to grant special leave for the matters raised in the interlocutory application.
3. Mr Wu submits that this Court has a duty to assist the High Court to bring and maintain justice to our society and refusing his application under r 39.05 constitutes a failure of this Court's public duties. Mr Wu also contends that the Court has breached its own rules by refusing to accept the interlocutory application for filing, referring to s 37M(4) of the Federal Court of Australia Act 1976 (Cth).
4. Mr Wu concludes by submitting that refusing to accept the interlocutory application for filing and refusing to set aside the Registrar's decision would result in judicial bias against him.

1. By the interlocutory application, Mr Wu seeks to challenge the decision in Wu v DSMJ which is a decision of a judge of this Court exercising appellate jurisdiction: see s 24(1)(d) and s 25(1AA) of the Federal Court Act. An appeal from a judgment of the Court constituted by a single judge, as was the case here, lies to the High Court, subject to a grant of special leave to appeal: see s 33(4) of the Federal Court Act. Mr Wu acknowledges that fact in his submissions. It is apparent that Mr Wu has exhausted his rights of appeal in this Court. That being so, an attempt to challenge in this Court a decision of a judge of the Court exercising appellate jurisdiction is an abuse of process: see Kitoko at [44]. The Registrar was correct to refuse the interlocutory application for filing.
2. Mr Wu seeks to overcome the fact that he has exhausted the appellate jurisdiction of this Court by attempting to invoke r 39.05 of the Rules. Grounds 1 to 14 of Mr Wu's judicial review application allege, in effect, that the Registrar should have permitted the filing of the interlocutory application because it was an application made pursuant to r 39.05 of the Rules to correct the judgment because of a slip or omission, that the Registrar did not consider that it was such an application and she did not have power to decide whether the orders could be varied pursuant to r 39.05 of the Rules.
3. Rule 39.05 of the Rules provides:

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in a judgment or order; or

(h) there is an error arising in a judgment or order from an accidental slip or omission.

1. Mr Wu relies in particular on r 39.05(h) of the Rules, which is referred to colloquially as the "slip rule".
2. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 a Full Court of this Court (Bromberg, Rangiah and Bromwich JJ) said the following about r 39.05 at [12]:

Rule 39.05 of the Federal Court Rules allows the Court to vary or set aside a judgment or order after it has been entered if, relevantly, the judgment or order does not reflect the intention of the Court, or there is an error arising in a judgment or order from an accidental slip or omission. A "judgment" is defined in s 4 of the Federal Court of Australia Act 1976 (Cth), relevantly, as a "judgment, decree or order". A "judgment" is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a "judgment":...

1. In AMO25 v Administrative Review Tribunal (No 2) [2025] FCA 376 Wheatley J considered the operation of r 39.05(h). Her Honour relevantly said at [46]:

The slip rule applies in circumstances where the proposed correction to a judgment or order is one in which no real difference of opinion can exist. The operation of the slip rule reflects the authority of a superior court of record at any time to correct an error in an order arising from an accidental omission or slip: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; [1995] FCA 943 at 389-391. It was described by Gordon J (then of this Court) in Tropicana Limited v Australasia Corporate Services Pty Ltd [2011] FCA 684 at [16], as follows:

The slip rule reflects the authority of superior courts at any time to correct an error in a decree or order arising from a slip or accidental omission and may be invoked irrespective of whether the order has been drawn up, passed and entered. It permits the correction of an error where it is either a unilateral or mutual error or inadvertence by the parties' representatives, or an error of the Court. Importantly, it operates nunc pro tunc to correct the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; (1995) 61 FCR 385 at 389 to 391 and the authorities there cited. The rule is very wide in its scope but it is not available as a matter of course: Elyard at 390. As the High Court said in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 597, there is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made. It is important to remember that the rule exists to avoid injustice: Elyard at 391-392. The rule does not apply where the amendment is a matter of controversy. It can apply where the proposed amendment is one upon which no real difference of opinion can exist: Elyard at 390-391. Finally, it is in the Court's discretion to exercise its powers under the slip rule to correct an accidental error or omission and the Court may do so on its own motion: Shaddock at 597.

1. It is clear from a review of the interlocutory application that Mr Wu challenges the findings in Wu v DSMJ and contends that the judge erred. The matters he raises are not mere slips or accidental omissions. They are substantive matters which would invite controversy and upon which there would be a real difference of opinion. For example, ground 4 of the interlocutory application is in the following terms:

Did the Court consider the following evidence found in the document named on-call policy (Pt C, Tab 9) in making the December 6 Judgement? If yes, I seek the Court's clarification where such consideration can be seen explicitly in the December 6 Judgement. If no, I seek the Court's clarification why it was not considered while I had drawn the Court's attention to such evidence.

A person is on-call when, as part of the established arrangement, expressly agreed upon in writing by them - our people and GROW, they are rostered to be available outside of Core-Service Hours to be available to work on any Incidents which may arise.

...

1. The Registrar considered the interlocutory application on its face and correctly found that the grounds raised took issue with the Court's findings, were to be characterised as grounds of appeal and that Mr Wu had exhausted his appeal rights in this Court. Accordingly, acceptance of the interlocutory application for filing would constitute an abuse of process. Contrary to Mr Wu's submission the Registrar did not exercise any power under r 39.05 of the Rules.
2. Nor has there been any denial of procedural fairness to Mr Wu by refusing the filing of the interlocutory application as alleged in ground 14 to 16 of the application for judicial review. Mr Wu's appeal from the orders made in the Circuit Court was heard by a judge of this Court. He has exhausted his appeal rights and cannot overcome that reality by seeking to challenge the findings in Wu v DSMJ by an application made pursuant to r 39.05 of the Rules.
3. Finally, by ground 17 of the application for judicial review Mr Wu contends that the interlocutory application is necessary to avoid a possible appeal to the High Court, which will be inevitable if the interlocutory application is not heard. This ground of review cannot be sustained. As I have already observed, Mr Wu has exhausted his appeal rights in this Court and he cannot overcome that reality by relying on r 39.05 of the Rules in circumstances where he seeks to challenge findings of the trial judge. It is not correct to say, as Mr Wu also asserts by ground 17, that a refusal by this Court to accept the interlocutory application for filing in the circumstances outlined above constitutes a failure by it to "carry out its public duties".
4. Contrary to Mr Wu's submission, that conclusion does not result in "judicial bias against [him]". Mr Wu gives no evidence of the actual or apprehended bias said to arise by reason of the decision to refuse to accept the interlocutory application for filing or by refusing to set aside that decision. That these are decisions not in Mr Wu's favour is not sufficient to establish any bias.

1. Mr Wu has not made out any of his grounds of judicial review. His application should be dismissed.
2. As the Registrar filed a submitting notice there should be no order as to costs.
3. I will make orders accordingly.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.