The Federal Court of Australia creates a novel procedural issue

Can an application be "dismissed" before being filed?

People possessing the psychic ability of clairvoyance may be able to see future events. 

The psychic ability of precognition: seeing the future
Precognition: seeing the future

The Federal Court of Australia has delivered what is possibly a unique judgment. It seemingly relies on the precognition of a future event that post-dates the judgment. 

In a judgment delivered on 19 December 2025, Justice Thawley referred to his judgment delivered on 25 July , at [38]:

At the time Mr Dunstan lodged his amended statement of claim, it was uncertain whether leave was required. No decision was made about whether to accept the document for filing and Mr Dunstan was informed that the issue would be addressed at the hearing the following day. There was no breach of s 35A(4) and no unfairness to Mr Dunstan in circumstances where the amended statement of claim was accepted for filing after the hearing (and taken to have been filed the day before the hearing) and his application was dismissed having regard to the terms of the amended statement of claim.

Precognition may explain the above clarification given by Justice Thawley on 19 December 2025 for his decision of 25 July 2025 -

... issues arise as to the procedural basis upon which the Amended Statement of Claim was taken into account in the judgment delivered on 25 July 2025, given that it was not accepted for filing until 29 July 2025.

Form 59

Rule 29.02(1)

Affidavit

No. ACD 66 of 2025

Federal Court of Australia

District Registry: Australian Capital Territory

Division: General

COLIN GEORGE DUNSTAN  

Applicant

ROBYN ORR and others

Respondents


Affidavit of: Colin George Dunstan

Address: 22 Sentry Crescent, Palmerston ACT 2913

Occupation: Retired

Date: 27 January 2026 


Contents

Document number

Details

Paragraph

Page

1

Affidavit of Colin George Dunstan. 

1

1-7

2

Annexure “ CGDA07 ” being a paginated bundle comprised of the following documents referred to in the affidavit. 

15

8-109

3

Correspondence from Colin Dunstan to The Hon. D S Mortimer, Chief Justice, Federal Court of Australia, dated 28 July 2025 

16

9-25

4

Stamped Amended Statement of Claim in ACD57 of 2024 lodged 16 July 2025 and filed on 29 July 2025 

19

26-104

5

Email from Colin Dunstan to Associate of Justice Moshinsky and Ms McKean dated 3 December 2025 and reply from Associate of Justice Moshinsky dated 8 December 2025 

20, 21

105-107

6

Order of Moshinsky J made 8 December 1995 setting down hearing of Application for Leave to Appeal for 19 February 2026

21

108-109

7

Annexure “ CGDA08 ” being a paginated bundle comprised of the following documents referred to in the affidavit. 

24

110-127

8

Reasons for Judgment given on 19 December 2025 in ACD 57 of 2024. 

26

111-125

9

Orders dated 19 December 2025 in ACD 57 of 2024. 

25

126-127

10

Annexure “ CGDA09 ” being a paginated bundle comprised of the following documents referred to in the affidavit. 

36

128-222

11

Emails between the Applicant and the Federal Court of Australia dated 16 July 2025. 

16, 17, 23

129

12

Orders dated 25 July 2025 in ACD 57 of 2024. 

37

130-132

13

Applicant’s Submissions filed 15 August 2025 in ACD 57 of 2024. 

40

133-154

14

Respondent’s Submissions dated 29 August 2025 in ACD 57 of 2024

40

155-187

15

Applicant’s Submissions in reply filed 5 September 2025 in ACD 57 of 2024

40

188-192

16

Applicant’s oral submissions in ACD 57 of 2024 at hearing on 12 December 2025. 

23, 41

193-209

17

Exhibit 1, ACD 57 of 2024, hearing on 12 December 2025, referenced by Applicant in oral submissions.

41

210-222


I Colin George Dunstan, retired, affirm: 

  1. I am the Applicant in this proceeding.

  2. The matters deposed to in this affidavit are true to the best of my knowledge and belief, except where otherwise stated.

  3. This is my second affidavit in this proceeding, which concerns an application for leave to appeal from the judgment delivered by the Court on 25 July 2025. 

  4. This affidavit is relied upon solely to place before the Court the procedural history and documentary context relevant to the application for leave to appeal. 

  5. My application for leave to appeal and for other orders was lodged on 28 July 2025 and accepted for filing on 31 July 2025. It was accompanied by a draft Notice of Appeal received by the Court on 28 July 2025.

  6. Events occurring between August and December 2025 materially altered the circumstances existing at the time those documents were prepared. Relevant matters include the following.

  7. First, my requests for a stay of the orders made on 25 July 2025, which were directed towards the making of a vexatious litigant order against me, were not heard.

  8. Secondly, pursuant to the orders of 25 July 2025, I made written and oral submissions contending that there were no grounds for the making of a vexatious litigant order.

  9. Thirdly, following a hearing before the Court on 12 December 2025, the Court delivered judgment on 19 December 2025. That judgment made a vexatious litigant order against me and included reasons that addressed aspects of my applications in the present proceeding which had not been overtaken by the events occurring between August and December 2025.

  10. With this affidavit, I have lodged for filing an amended Application for Leave to Appeal and a new draft Notice of Appeal. Those documents take account of the material events and changes in circumstances arising after the lodgement of the original versions on 28 July 2025.

  11. The correctness of the judgment delivered on 25 July 2025 is disputed. If that judgment is erroneous, I would suffer significant consequences.

  12. The proposed appeal raises an issue of importance that it is appropriate be determined by the Full Court.

Part A : Procedural history relevant to the proposed appeal 

Documentary Bundles

  1. I have caused the documents referred to in this affidavit to be compiled into three bundles.

  2. Now produced and shown to me, and marked “CGDA07”, “CGDA08” and “CGDA09”, are those paginated bundles.

  3. The documents contained in “CGDA07” are:

  1. my letter to the Honourable D S Mortimer, Chief Justice of the Federal Court of Australia, dated 28 July 2025;

  2. my Amended Statement of Claim in proceeding ACD 57 of 2024, lodged on 16 July 2025 and accepted for filing on 29 July 2025;

  3. my email dated 3 December 2025 to the Associate of Justice Moshinsky and to Ms McKean, solicitor for the Respondents, and the reply dated 8 December 2025 from the Associate of Justice Moshinsky; and

  4. the order of Moshinsky J made on 8 December 2025 listing my Application for Leave to Appeal for hearing on 19 February 2026.

Amendment of Statement of Claim

  1. On 28 July 2025, when I wrote to the Chief Justice, I was aware of a difference between the Federal Court Rules and an email sent to me by the Registry on 16 July 2025.

  2. That email stated that it was not possible to determine whether leave would be granted in respect of my Amended Statement of Claim and that acceptance for filing would be addressed at an interlocutory hearing the following day.

  3. My understanding at that time was that rr 16.51(1) and (4) of the Federal Court Rules 2011 (Cth) permitted the amendment without leave. Those provisions provide that a party may amend a pleading once before the pleadings close and may plead matters arising after the commencement of the proceeding.

  4. On 29 July 2025, the Registry accepted my Amended Statement of Claim for filing.

Correspondence with the Associate

  1. On 3 December 2025, I wrote to the Associate of Justice Moshinsky and to Ms McKean concerning the acceptance for filing of my Amended Statement of Claim after the decision delivered on 25 July 2025.

  2. On 8 December 2025, the Associate of Justice Moshinsky replied, stating that the matters raised in my email could be addressed at the hearing.

Statutory Provisions

  1. In July 2025, I was not aware of certain provisions of the Federal Court of Australia Act 1976 (Cth). I referred to those provisions in oral submissions at the hearing on 8 December 2025.

  2. It was my submission that an instruction given on 16 July 2025 to the Registry not to accept my Amended Statement of Claim raised issues under ss 35 and 35A of the Act, including s 35A(4), which provides that a Registrar is not subject to direction or control in the exercise of powers under that section.

Judgment of 19 December 2025

  1. The documents in “CGDA08” comprise the reasons for judgment delivered on 19 December 2025 and the order of the Court made on that date.

  2. That order prohibited me from instituting proceedings in this Court without leave pursuant to ss 37AO(2)(b) and 37AR of the Act.

  3. At paragraphs [37] and [38] of the reasons, the Court recorded that:

  1. it was uncertain at the relevant time whether leave was required for the filing of the Amended Statement of Claim;

  2. no decision had been made regarding acceptance for filing prior to the hearing; and

  3. there was no breach of s 35A(4) and no unfairness, because the Amended Statement of Claim was later accepted for filing and treated as having been filed the day before the hearing.

  1. I do not understand the Amended Statement of Claim to have been treated as filed prior to 29 July 2025, being the date on which it was accepted for filing.

  2. Issues also arise as to whether any unfairness resulted in circumstances where:

  1. the Respondents made no application to dismiss the Amended Statement of Claim at a hearing conducted before it was accepted for filing; and 

  2. the proceeding was dismissed without such an application.

  1. These matters are material to my application for leave to appeal from the decision delivered on 25 July 2025.

Registrar Decisions and Judicial Review

  1. In my experience, a decision by a Registrar to reject a document for filing may give rise to judicial review by the Court.

  2. In proceeding ACD 57 of 2024, Registrar Morgan rejected my application to commence the proceeding. That decision was reviewed by Kennett J.

  3. In Dunstan v Morgan [2024] FCA 982, delivered on 28 August 2024, Kennett J set aside the Registrar’s decision and referred the documents back to the Registry for reconsideration.

  4. I understand that a different process was followed in July 2025, with the result that no Registrar made a final decision concerning acceptance for filing of my Amended Statement of Claim.

  5. In those circumstances, issues arise as to the procedural basis upon which the Amended Statement of Claim was taken into account in the judgment delivered on 25 July 2025, given that it was not accepted for filing until 29 July 2025.

Part B : Procedural context of the vexatious litigant order

  1. The following matters concern the procedural context in which the vexatious litigant order made on 19 December 2025 arose.

  2. The documents contained in the bundle marked “CGDA09” comprise:

  1. email correspondence between the Applicant and the Federal Court dated 16 July 2025;

  2. orders made on 25 July 2025 in proceeding ACD 57 of 2024;

  3. the Applicant’s written submissions filed on 15 August 2025 in that proceeding;

  4. the Respondents’ written submissions dated 29 August 2025;

  5. the Applicant’s submissions in reply filed on 5 September 2025;

  6. the Applicant’s oral submissions at the hearing on 12 December 2025; and

  7. an exhibit tendered at that hearing and referred to by the Applicant.

  1. In the judgment delivered on 25 July 2025, the Court dismissed my application to set aside orders made on 7 December 2023 and indicated that the Court would consider whether to make a vexatious litigant order. 

  2. At that time, the only further proceeding then in prospect, to the best of my knowledge, was an application for leave to appeal from the judgment delivered on 25 July 2025.

  3. I lodged an application for leave to appeal from that judgment on 28 July 2025.

  4. The orders made on 25 July 2025 provided for the filing of submissions and evidence in relation to the proposed vexatious litigant order and permitted me to request an oral hearing.

  5. At the hearing conducted on 12 December 2025, counsel for the Respondents submitted that the Respondents did not seek an order staying my application for leave to appeal from the judgment delivered on 25 July 2025.

  6. On 19 December 2025, the Court delivered judgment and made an order pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) prohibiting me from instituting proceedings in this Court without leave.

  7. That judgment was delivered by the same judicial officer who delivered the judgment on 25 July 2025.

  8. The vexatious litigant order made on 19 December 2025 applies to applications to institute proceedings in this Court unless and until it is set aside.


Affirmed by the deponent

at Gungahlin

in the Australian Capital Territory

on 27 January 2026

Before me:

)

)

)

)

)



Signature of deponent






Signature of witness

Name

Qualification

Address of witness

Documents filed in the Federal Court of Australia with the above affidavit affirmed 27 January 2026 are: 

  1. Explanatory Notes with Amended Documents, dated 27 January 2026. 
  2. Amended Application for Leave to Appeal, dated 27 January 2026. 
  3. Amended Draft Notice of Appeal dated 27 January 2026. 

Click on the document description to read a copy stored in Google Drive as a pdf file. 

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