1 EDELMAN J. The plaintiff is a party to a proceeding, NSD1070/2024, in the Federal Court of Australia by which she says that she is seeking judicial review of a decision made by the Office of the Australian Information Commissioner. The plaintiff says that she applied for an interim suppression order in those proceedings but that the order was refused by Yates J. The plaintiff says that she requested written reasons for that decision under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Yates J refused this request on the basis that the decision not to make an interim suppression order is not a decision to which s 13 applies. The plaintiff alleges that this statement by Yates J was "false".
2 In return email correspondence, the plaintiff was advised that should she seek an order that Yates J disqualify himself from the proceeding, that application should be brought in accordance with r 17.01 of the Federal Court Rules 2011 (Cth). The plaintiff did not make that application for disqualification under r 17.01 of the Federal Court Rules. In her affidavit she prefaces the requirement that she lodge an interlocutory application for disqualification of Yates J from the proceedings with the description of "an unwarranted demand to defraud me".
3 The plaintiff applies for a constitutional or other writ seeking (i) an order in the nature of prohibition precluding Yates J from presiding over proceeding NSD1070/2024; and (ii) an order in the nature of prohibition precluding Yates J from presiding over future proceedings in which the plaintiff is a party.
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).
5 There are numerous issues that arise from the plaintiff's application. One issue is that the plaintiff refers to (unspecified) "parties" to her application for judicial review. But those parties to her application who would be directly affected by any writ of prohibition were not joined by the plaintiff to her application in this Court. A second issue is whether the Federal Court of Australia, rather than Yates J as a Judge of the Federal Court of Australia, is the proper defendant to the constitutional writ. A third issue is whether the plaintiff's application is an abuse of process because it circumvents the usual appellate processes.[1] That issue concerns whether it is an abuse of process for the plaintiff to seek a constitutional
- ↑ Dimitrov v Supreme Court of Victoria (2017) 263 CLR 130 at 138–139 [19].
