In Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274 the Court ordered that the proceeding be permanently stayed as an abuse of process.
The judgment states
On 22 July 2024 the applicant sought to commence a proceeding in this Court by attempting to file an originating application together with his affidavit in support affirmed 22 July 2024 (the proposed SCV proceeding documents). The originating application named the “Chief Justice, Supreme Court of Victoria” as the respondent and sought an injunction from this Court to require the Chief Justice of the Supreme Court “not [to] refuse to seal originating process filed by the Applicant”.
The affidavit in support exhibited the reasons given by the Prothonotary of the Supreme Court for rejecting the filing of three proposed proceedings by the applicant in the period between 22 April and 26 April 2024. In brief summary the Prothonotary said that: (a) the first proceeding by the applicant alleged that the Supreme Court had refused to hear matters brought by the applicant, and in doing so acted inconsistently with the Magna Carta 1297 and other ancient legislation. The Prothonotary said that proceeding was not accepted for filing because, amongst other things, it did not identify a cause of action; (b) the second proceeding by the applicant alleged various pieces of criminal legislation were “illegal” and, amongst other things, sought habeas corpus. The Prothonotary said that proceeding was not accepted for filing because it lacked any basis and was incomprehensible; and (c) the third proceeding by the applicant alleged, amongst other things, that the Commonwealth “produced false materials”. The Prothonotary said that proceeding was not accepted for filing because it was “completely unclear and unexplained” how the applicant sought to invoke the jurisdiction of the Supreme Court.
Kant commenced a new proceeding and four days later commenced a further proceeding that named the Director of the United States Central Intelligence Agency” (CIA) and the Australian Information Commissioner (AIC) as respondents, with the former being required to produce records of all of the Applicant's personal information as held by the CIA. Subsequently Kant sought to commence another proceeding that named the Commonwealth Attorney-General as the respondent and sought the following relief: 1. a writ of quo warranto, and: orders voiding all warrants issued by the Attorney-General of the Commonwealth that impact upon the rights of the Applicant; and, an order permanently vacating the office of Attorney-General of the Commonwealth. ...
The judgment notes, in relation to the claim that 'every law made by the Parliament of the Commonwealth that empowers the Attorney General to issue warrants is ultra vires the Constitution' - The applicant’s affidavit in support exhibited the Summary Offences Amendment (Nazi Salute Prohibition) Act 2023 (Vic) and Articles 20 to 22 of International Covenant on Civil and Political Rights (the ICCPR) as reproduced in Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth), which the applicant deposed he believed were “false documents” which he “suspected” were “produced under warrant” issued by the Attorney-General. The applicant’s affidavit did not state what interest he had in relation to the amendment to expressly criminalise the use of a Nazi salute. ...
The Court noted that documents from Kant 'should not be accepted for filing' as ‘frivolous’, ‘vexatious’, ' without substance, groundless and fanciful'. .
Among other things Kant responded that rejecting of filing was “unlawful” because, in it constituted an offence against s 66(1AA) of the Privacy Act and that 'the effect of the Observance of Due Process of Law Act 1368 is that the decisions to reject the filing of those documents were void and inoperative. Kant further referred to
(i) the Liberty of Subject Act 1354;
(ii) the Observance of Due Process of Law Act 1368;
(iii) s 3 of the Habeas Corpus Act 1640;
(iv) s 8 of the Imperial Acts Application Act 1980 (Cth);
(v) s 35A of the FCA Act; and
(vi) ss 15, 66(1) and 66(1AA) of the Privacy Act.
In the present instance Murphy J states
No reviewable error has been shown in relation to the state of satisfaction of the Registrars in deciding not to accept for filing: (a) the rejected SCV documents because the Court has no jurisdiction or power to issue an injunction requiring the Chief Justice of the Supreme Court of Victoria to accept documents sought to be filed by the applicant; and (b) the rejected CIA documents and the rejected AG documents because they amounted to an abuse of process.
But even if I was satisfied that there was some error by a Registrar, in the circumstances of the present case I would not grant the relief the applicant seeks.
Each of the three proposed proceedings that the Registrars rejected for filing was unquestionably, on the face of the documents, an abuse of process and it was appropriate that they were rejected. I will not address each and every argument the applicant made as enough public resources have already been spent on this matter. I deal with the applicant’s main arguments below.
First, the applicant’s assertion that the decisions to reject the relevant documents for filing is somehow an abrogation of the Court’s duty to hear justiciable matters only has to be stated to appreciate its lack of force. People, of course, have a right to have their civil disputes decided in a fair hearing before a court or tribunal. But the purpose of r 2.26 is to protect the procedures of this Court from abuse by empowering a Registrar to reject documents lodged for filing which, on their face, would be an abuse of court process or frivolous or vexatious: Luck at [36]. Here, the difficulty for the applicant is that the rejected documents allege frivolous and groundless claims, and rejecting their filing does not impermissibly cut across his right to have legitimate claims heard by the Court; it is not somehow an abrogation of the Court’s duty to hear justiciable matters. For the same reason, the applicant’s assertion that the decisions not to accept the rejected documents for filing impermissibly cuts across his right to a judicial remedy under the ICCPR has no merit.
Second, the same can be said about the applicant’s contention that the Registrar’s decisions to refuse to accept the rejected documents for filing is a crime under the Privacy Act.
In reliance on s 12B(2) of the Privacy Act, which refers to the ICCPR, the applicant’s argument read various Privacy Act provisions as if the text included various “rights” set out in the ICCPR. For example, he submitted that s 66(1) of the Privacy Act has effect as if it reads that: A federal court contravenes that subsection if: (a) the federal court is requested by an individual to do something required for giving effect to a right or freedom recognised in the ICCPR; and, (b) the federal court refuses or fails to do so.
The applicant then argued that by refusing to accept his documents for filing, the Registrar breached that provision, as well as breaching s 66(1AA) which deals with systemic breaches of s 66(1).
In fact s 66(1) provides: A person contravenes this subsection if: (a) the person is required to give information, answer a question or produce a document or record under this Act; and (b) the person refuses or fails to do so.
The applicant’s argument reflects a fundamental misunderstanding of the effect of s 12B of the Privacy Act, which is concerned with ensuring that there is a Constitutional basis for the operation of the Act. It does not operate to alter the meaning of the text of the Act as the applicant proposed. The Explanatory Memorandum to the Privacy Amendment (Private Sector) Bill 2000 provides that “Clause 12B is intended to ensure that the Act is given the widest possible operation consistent with Commonwealth constitutional legislative power.”
Third, the applicant’s contention that r 2.26 of the Rules is void for inconsistency with ancient Imperial legislation reeks of the growing tendency for self-represented litigants to rely on ancient legislation in support of submissions that are blatantly unsustainable under Australian law: see generally Hobbs H, Young S, and McIntyre J, The Internationalisation of Pseudolaw : The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand, (2024) 47(1) UNSW Law Journal 309.
The applicant contended that Imperial legislation such as the Liberty of Subject Act 1354, the Observance of Due Process of Law Act 1368 and the Habeas Corpus Act 1640 apply in modern Australia, and that they render r 2.26 void and otherwise render the decision to reject his documents for filing unlawful. It can be accepted that the Habeas Corpus Act 1640 has continuing significance. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [155], Gageler J (as his Honour then was) said: I
n Re Bolton, Brennan J specifically identified the Habeas Corpus Act 1679, as extended by the Habeas Corpus Act 1816, as amongst the ancient statutes which remain of undiminished significance within our contemporary constitutional structure. Brennan J might equally have identified the Petition of Right 1627 (which declared in substance that orders of the monarch were not sufficient justification for the imprisonment of his subjects) and the Habeas Corpus Act 1640 (which provided that anyone imprisoned by command of the King or his Council or any of its members without cause was to have a writ of habeas corpus on demand to the judges of the King's Bench or the Common Pleas).
But the writ of habeas corpus to which Gageler J’s observations were directed is concerned with the legality of continuing imprisonment. This case does not involve any question of imprisonment and habeas corpus has no bearing on the Registrar’s decisions to refuse to accept the rejected documents for filing. Further, assuming that the other Imperial statutes on which the applicant relied continue to apply in modern Australia (itself an optimistic assumption given that any inconsistency between Australian legislation and Imperial legislation resolves in favour of the Australian law: Australia Act 1986 (Cth) s 3(2)), they do no more than require due process in certain situations, none of which are relevant to the present case.
Fourth, the applicant’s contention that the Registrars failed to give reasons for rejecting the documents for filing is just wrong. As extracted above, reasons were provided in respect of each rejection decision, and the applicant did not contend that those reasons were somehow inadequate.
Fifth, there is no force in the applicant’s argument that an examination of the rejected AG documents and the NACC proceeding documents shows that no reasonable person could reject the AG proceeding documents on grounds that the proposed proceeding is “without substance, groundless and fanciful, and both frivolous and vexatious”, but not also reject the NACC proceeding documents. That is not the case. The NACC proceeding is a relatively confined proceeding seeking judicial review of a decision under the Freedom of Information Act 1982 (Cth) in which the applicant seeks production of one document. That stands in contrast to the failure to articulate any reasonable cause of action in the AG proceeding, coupled with sweeping and fanciful proposed remedies.
Sixth, I do not accept the applicant’s contention that the Registrars impermissibly made substantive judgments in respect of the rejected documents. A Registrar does not, when refusing to accept an originating document for filing under r 2.26, make any substantive judgment about the underlying merit of the claims in the proposed proceeding. The Registrar is instead ensuring compliance with procedural requirements, 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.
Here, it is plain on the face of the documents that the applicant’s proposed proceedings are groundless, frivolous and vexatious, and would be an abuse of the Court’s process: (a) as to the proposed SCV proceeding, the Chief Justice of the Supreme Court of Victoria is plainly not a Commonwealth entity and there is no basis upon which this Court could have jurisdiction to injunct the Chief Justice of the Supreme Court not to refuse to seal originating process sought to be filed by the applicant in that Court; (b) as to the proposed CIA proceeding, the rejected CIA documents do not disclose a cause of action in relation to which the Court might adjudicate. The originating application does not detail any cause of action or a basis for the remedies sought; the applicant’s claims are not supported by anything on affidavit and the originating process does not comply with r 8.05(4). The originating application does not disclose how the RPSP Act could provide the applicant with a cause of action when there is no allegation that he is an “authorised person” under that Act, and it provides no basis for his equitable claim. In his written submissions the applicant conceded that he had “not disclosed the grounds of his claims”; and (c) as to the proposed AG proceeding, the only support for the applicant’s claims is found in his supporting affidavit, which states that the exhibited legislation and ICCPR are “false documents” (whatever that means) and the applicant’s “suspicion” that those documents “were produced under warrant issued” by the Attorney-General or his agents. It does not disclose any basis for the allegation that publicly available legislation was “produced under warrant issued” by the Attorney-General, and that allegation is the only basis for the sweeping relief regarding warrants that is sought. The proposed relief itself indicates the frivolous and vexatious nature of the claims as the application seeks orders to void all warrants issued by the Attorney-General that impact upon the rights of the applicant (without identifying any such warrants that have been issued); an order to “permanently vacate” the office of the Attorney-General (without identifying a basis or power for such an order); and a permanent injunction to require the Attorney-General not to issue warrants that impact upon the rights of the applicant (without identifying a basis or power for such an order). ...
I also consider that this proceeding should be permanently stayed as an abuse of process. I accept that there is a heavy onus before a court is satisfied that there is an abuse of process, and the power to grant a permanent stay of a proceeding is one to be exercised only in exceptional circumstances: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ and 542 per Deane J.
While the step of permanently staying this proceeding is an extreme measure, this is an extreme case in which judicial economy and efficiency is undermined by repeated attempts at judicial review applications on manifestly untenable grounds. The result of proceedings such as this is that “other litigants are left in the queue awaiting justice”: UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [45] (Kiefel CJ, Bell and Keane JJ). As noted by the Full Court in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 at [6]- [7] (Lee, Feutrill and Jackman JJ):
Importantly
The stark contemporary reality is that there are an increasing number of controversies being brought before the Court and a finite number of judges able to manage and determine those matters. Every day a judge of the Court is required to deal with a vexatious proceeding is another day the judge is prevented from using the judicial power of the Commonwealth to quell a real dispute between parties who have invoked the Court’s jurisdiction.
The importance of s 37M(3) of the FCA Act in the work of the Court cannot be overstated. It requires judges of the Court to interpret and apply any power conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: see also s 37M(1). A fundamental aspect of doing more than paying lip service to these case management objectives is taking the necessary steps to ensure that the whole of the Court’s business is managed efficiently. The aim of the overarching purpose provisions is undermined if the Court is passive and refrains from taking active steps to prevent the abuse of the Court’s processes when such abuses become manifest. This involves judges taking a proactive role, where appropriate, in identifying circumstances where the processes of the Court are being repeatedly or frequently abused by a pattern of apparently vexatious proceedings.
In a real sense this proceeding, which seeks to resuscitate three earlier attempted proceedings, impairs the integrity of the Court and consumes its limited resources. It is appropriate to take a proactive approach to the applicant’s abuse of the Court’s processes.
