Doing a favour for a friend in the Federal Court of Australia

Corruption is a Dirty Word

From the National Anti-Corruption Commission web page "What is corrupt conduct". 

There are 4 types of corrupt conduct under the NACC Act.

A person engages in corrupt conduct if:

1. they are a public official and they breach public trust
2. they are a public official and they abuse their office as a public official
3. they are a public official or former public official and they misuse information they have gained in their capacity as a public official
4. they do something that adversely affects a public official’s honest or impartial exercise of powers or performance of official duties. Any person can engage in this type of corrupt conduct, even if they are not a public official themselves.

In a recent Federal Court of Australia proceeding - in which it is alleged the Tax Commissioner's legal representatives intentionally deceived Wigney J in a prior proceeding in the Federal Court of Australia - two unexpected difficulties arose. 

These unexpected difficulties were not with the Tax Commissioner's legal representatives, but with the processes of the Federal Court. "Unexpected" is something of an understatement. It would be reassuring to believe staff and judges in the Federal Court of Australia conduct themselves with unswerving attention to the honest and impartial exercise of powers in the performance of their official duties.  

Both of these difficulties had a common purpose - to block a challenge to the decision of Wigney J that was obtained by the deceit perpetrated by the Tax Commissioner's legal representatives on the Federal Court and Wigney J.  The second unexpected difficulty shows that Registrars have adopted a practice of seeking endorsement from judges for decisions they are to make. It is likely this happened with the first unexpected difficulty - that the delay and decision purported to be made by a Registrar originated with a judge of the Federal Court. 

Unexpected Difficulty Number 1

An application to set aside a decision of Wigney J on the ground that the Tax Commissioner's legal representatives deceived him met with an extraordinary delay after it was lodged in the Federal Court of Australia. 

• Instead of being stamped as "filed" by a Registrar within a day or two, it "gathered dust" in the "unprocessed" queue for 15 long days. 

 After this exceptional delay, it was rejected for a reason that was plainly wrong.

"Plainly wrong" can be assessed by consideration of what has happened previously. The legal system is guided by precedents and authorities. 

The Federal Court of Australia provides a very useful service for searching prior judgments. Of all decisions by Registrars to reject applications for filing in the last 10 years, there were about 100 judicial reviews determined by the Court. Of these, only two were successful. 

Those two were accepted because the Registrars in both were held to have made the same error in refusing to accept for filing applications lodged with the Court. There are now THREE decisions of Registrars making the same error. 

It is hard to believe in the absence of coaching from a judge that a Registrar with over twenty years experience would: 

1. Make a decision that included such a well-known, basic error. 
2. Delay making any decision at all for more than two weeks. 

It took some effort to overcome this difficulty. Kennett J set aside the Registrar's refusal to accept the application for filing after the hearing of a judicial review in the judgment "Dunstan v Morgan [2024] FCA 982" published on 28 August 2024.

Unexpected Difficulty Number 2

After overcoming the first unexpected difficulty, another surfaced quite recently. Again, the difficulty arose in the Federal Court and not with the Tax Commissioner's legal representatives.  

Proceedings in the Federal Court of Australia are conducted in accordance with the Federal Court of Australia Act 1976 and the Federal Court Rules 2011 (Cth). 

Being a court where litigants turn to resolve controversies and disputes according to law, it is reasonable to assume the Court will conduct proceedings in accordance with the Act and Rules created for it to perform its functions. 

Any trust people may have placed in this assumption is misguided. 

This difficulty reveals the Federal Court has two defects in its day to day operations: 

• Registrars no longer make decisions based on the delegations that have been given to them. When some potentially "difficult" decision needs to be made, Registrars will only make "their" decision after seeking an "endorsement" from a judge of the Court, and
• The decisions made by judges in these circumstance, namely decisions that are to be purportedly made by Registrars, have little regard for the relevant Act and Rules of the Court. 

Under the Federal Court Rules 2011 (Cth), an amended Statement of Claim in the proceeding alleging the Tax Commissioner's legal representatives deceived Wigney J can be filed without leave of the Court. 

This is a straightforward process that Registrars have a clear unambiguous power to perform. There is no discretion to be exercised. 

This did not happen: 

• A Registrar was unwilling to carry out this step without first seeking "endorsement" from a Federal Court judge. 
• In this case, the Registrar obtained an "endorsement" from Thawley J - the judge assigned to hear an application by the Tax Commissioner in the same proceeding. Thawley J instructed the Registrar on how to process the amended Statement of Claim, which was to disregard the Federal Court Rules 2011 (Cth) and to not file the document. The document contained details of deceit by the Tax Commissioner's legal representatives in proceedings before Wigney J. 

Following a letter to the Chief Justice of the Federal Court of Australia describing this most recent failure of the Court to properly conduct its affairs, the amended Statement of Claim lodge on 16 July 2025 was FINALLY stamped as "filed" - in accordance with the  Federal Court Rules 2011 (Cth) - almost two weeks later, on 29 July 2025. (Here is a link to a copy of the letter to the Hon. Chief Justice D Mortimer, Federal Court of Australia.)

A copy of a PDF file containing the amended Statement of Claim is available on Google Drive.  

A copy of the amended Statement of Claim is also available as a post in this web site. Footnotes and annexures are not included in this version.