Page:2024FCA1196.pdf/5

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.

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

McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196
3