# McGinn v Australian Information Commissioner (No 2) (2024, FCA)

FEDERAL COURT OF AUSTRALIA
McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196 :
| File number: | NSD 1070 of 2024 |
| Judgment of: | YATES J |
| Date of judgment: | 14 October 2024 |
| Catchwords: | PRACTICE AND PROCEDURE – application for stay of proceeding pending outcome of an intended appeal PRACTICE AND PROCEDURE – application for disqualification for actual bias PRACTICE AND PROCEDURE – application for change of respondent's name |
| Legislation: | Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 13 Federal Court of Australia Act 1976 (Cth) s 37AI Federal Court Rules 2011 (Cth) r 17.01 High Court Rules 2004 (Cth) r 25.09.1 |
| Cases cited: | McGinn v Australian Information Commissioner [2024] FCA 1185 McGinn v Federal Court of Australia [2024] HCASJ 38 |
| Division: | General Division |
| Registry: | New South Wales |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| Number of paragraphs: | 27 |
| Date of hearing: | 14 October 2024 |
| Counsel for the Applicant: | Applicant was self-represented |
| Counsel for the Respondent: | Mr H Rogers |
| Solicitor for the Respondent: | Australian Government Solicitor |
ORDERS
NSD 1070 of 2024
| BETWEEN: | SOPHIA MCGINN Applicant |
| AND: | AUSTRALIAN INFORMATION COMMISSIONER Respondent |
| ORDER MADE BY: | YATES J |
| DATE OF ORDER: | 14 OCTOBER 2024 |
THE COURT ORDERS THAT:
1. The applicant's interlocutory application dated 10 October 2024 be dismissed.
2. The applicant's interlocutory application dated 11 October 2024 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT Revised from transcript
YATES J:
INTRODUCTION
1 On 14 October 2024, I gave judgment on three questions: McGinn v Australian Information Commissioner [2024] FCA 1185 (Reasons 1).
2 In Reasons 1, I noted that, after the reasons had been prepared, and after the parties had been informed that judgment would be given on those questions on 14 October 2024, the applicant filed two interlocutory applications.
3 The first filed interlocutory application, dated 10 October 2024, seeks the following order:
   An order to stay these proceedings until the Applicant's appeal at High Court for constitutional writs is determined.
4 The second filed interlocutory application, dated 11 October 2024, seeks the following order:
   An order to disqualify Justice Yates from presiding these proceedings and future proceedings the Applicant is a party.
5 When these interlocutory applications were called on for hearing, the applicant did not appear.
6 Yesterday, Sunday 13 October 2024 at 6.00 pm, the applicant sent an email to the Court, addressed to me, which (omitting formal parts) said:
   I noticed that my recusal application is listed as the last item of the hearing on 14/10/2024. Which should be determined before any judgment.
   Please advise whether you will consider the recusal application first.
   If yes, I will attend the hearing.
   If no, I will not attend and I will apply setting aside the judgments per rule 39.05(a).
   (Original in italics.)
7 This email came to my attention at approximately 8.45 am today, 14 October 2024. At that time, I directed the Registry to inform the applicant, by email, that judgment in respect of the outstanding questions would be delivered before dealing with the other matters before the Court in this proceeding.
​8 Based on her email of 13 October 2024, I infer that the applicant has elected not to appear at the hearing of the two interlocutory applications she has filed.
9 I will deal with the interlocutory applications substantively.
BACKGROUND
10 In Reasons 1 (which should be read with these reasons) at [13]–[28] I set out the course of correspondence between the applicant and the Court following the first case management hearing on 2 September 2024. The following matters emerge from that correspondence.
11 On 2 September 2024, I declined to make an interim order suppressing the applicant's identity as a party in the proceeding. This decision was affirmed on 3 September 2024 after the applicant informed the Court that she was basing her application for an interim order on s 37 AI of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).
12 Later, on 3 September 2024, the applicant applied for reasons for that decision based on s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act). On 4 September 2024, the applicant was informed that the decision not to make an interim suppression order was not a decision to which s 13 of the AD(JR) Act applied. The applicant was also informed, however, that I would provide reasons for not making an interim suppression order when publishing my reasons in respect of the interlocutory application that the applicant was to bring seeking an order that her identity be suppressed.
13 This led the applicant to send an email, a short time thereafter, to the Court which was styled "Application of Recusal on Actual Bias to Justice Yates for consideration". The salient terms of the email are quoted in Reasons 1 at [20].
14 On 5 September 2024, the applicant was informed that if she wished to apply for an order seeking my disqualification from the proceeding on the ground of actual bias, she should proceed formally by filing an interlocutory application seeking that relief and stating the precise basis for it. The applicant was informed on two further occasions that this was the manner in which she should proceed should she wish to pursue an application for an order seeking my disqualification on the ground of actual bias. The applicant resisted taking this course.
15 On 25 September 2024, the applicant commenced a proceeding in the High Court for a constitutional or other writ seeking: (a) an order in the nature of prohibition precluding me ​from presiding in this proceeding; and (b) an order in the nature of prohibition precluding me from presiding over future proceedings in which the applicant is a party.
16 On 10 October 2024, Edelman J dismissed the applicant's application under r 25.09.1 of the High Court Rules 2004 (Cth) on the basis that the application disclosed no reasonable basis for the relief sought and that it was an abuse of process: Sophia McGinn v Federal Court of Australia [2024] HCASJ 38 (McGinn v Federal Court of Australia).
17 His Honour summarised the applicant's submissions as follows (at [4]):
   The submissions by the plaintiff include the following allegations: that the conduct of Yates J in dealing with the plaintiff's request for an interim suppression order and informal allegation of actual bias warrant the orders sought in this Court; that an application for disqualification is not an interlocutory application that may be made under r 17.01 of the Federal Court Rules; and that the advice to her to make an interlocutory application for disqualification under r 17.01 was an unwarranted demand made by a Commonwealth public official contrary to s 139.2 of the Criminal Code (Cth).
THE APPLICATION FOR DISQUALIFICATION FOR ACTUAL BIAS
18 Unfortunately, the interlocutory application seeking my disqualification does not particularise the bias that is alleged. However, the correspondence to which I have referred points to two matters.
19 The first matter—and the only matter referred to in the applicant's email on 4 September 2024 at 9.59 am seeking my "recusal"—was my decision that s 13 of the AD(JR) Act does not apply to the decision not to make an interim suppression order, and my statement that I would publish reasons for not making an interim suppression order at a later time.
20 In Reasons 1, I gave my reasons for not making an interim suppression order. As there stated, my decision not to make an interim suppression order was an exercise of judicial power. A decision of that character is not a decision to which the AD(JR) Act applies: see s 13(11) and the definition of decision to which this Act applies in s 3(1) of the AD(JR) Act.
21 The second matter—which emerges from the subsequent correspondence to which I referred in Reasons 1—was my statement that, if the applicant wished to apply for an order that I disqualify myself, she should do so formally, by filing an interlocutory application.
22 Rule 17.01 of the Federal Court Rules 2011 (Cth) (the Rules) provides:
   17.01 Interlocutory application
   (1) A party who wants to apply for an order in a proceeding that has already started ​must file an interlocutory application, in accordance with Form 35, that must:
       (a) state, briefly but specifically, each order that is sought; and
       (b) if appropriate, be accompanied by an affidavit.
   (2) The party filing the interlocutory application must serve the interlocutory application and any accompanying affidavit on any other party at least 3 days before the date fixed for the hearing.
   (3) However, a party may make an oral application for an interlocutory order at a hearing.
       Example: If a party is seeking to have a proceeding dismissed as disclosing no cause of action, the application should be made by interlocutory application.
       Note 1: Interlocutory application is defined in the Dictionary.
       Note 2: File is defined in the Dictionary as meaning file and serve.
       Note 3: On the filing of an interlocutory application, a Registrar will fix the return date and place for hearing and endorse those details on the interlocutory application for service.
23 In the email sent to the applicant on 6 September 2024, the applicant was informed of my view that the allegation of actual bias was a serious matter and that if she wished to seek an order that I disqualify myself on that basis, she should proceed formally by filing an interlocutory application under r 17.01. The applicant was also informed of my view that I did not consider it appropriate that an application for disqualification be advanced informally through email correspondence.
24 Neither the first matter nor the second matter is a manifestation of actual bias on my part. Neither matter justifies the order that the applicant seeks.
THE APPLICATION FOR A STAY
25 The application for a stay is based on the applicant's desire to appeal against Edelman J's order dismissing her application for constitutional or other writs. There is no evidence before me that the applicant has instituted any appeal.
26 I am not satisfied that the applicant's desire to pursue further proceedings in the High Court warrants the granting of any stay. Further, having considered Edelman J's reasons in McGinn v Federal Court of Australia, I am not persuaded that there is any reasonable likelihood that any appeal would succeed.
DISPOSITION
27 For these reasons, each interlocutory application will be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.
Associate:
Dated: 15 October 2024
This work is a decision of an Australian court and is copyrighted in Australia for 50 years after publication pursuant to section 180 of the Copyright Act 1968 (Cth).
However, as an edict of a government, it is in the public domain in the U.S.
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