Bell, in the matter of an application for leave to issue or file

[2018] HCATrans 38

[2018] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P65 of 2017

In the matter of -

an application by IAN BRUCE BELL for leave to issue or file

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 27 FEBRUARY 2018, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter, for the reasons which I now publish, I dismiss the application.  I direct that the reasons, as published, be incorporated into the transcript.

On 7 September 2016, the applicant, Ian Bruce Bell, filed an election petition purportedly pursuant to Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”) claiming, inter alia, a declaration that Rodney Norman Culleton was disqualified by s 44(ii) of the Constitution from being elected or of sitting as a senator in the Australian Parliament.

On 24 October 2017, Gordon J made orders dismissing the petition as failing to comply with the requirements of s 355 of the Electoral Act.

By a writ of summons filed on 7 September 2016, Mr Bell instituted common informer proceedings against Mr Culleton, purportedly pursuant to s 46 of the Constitution, and sought declarations impugning the constitutionality of provisions of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) that limit the amount that may be recovered from a person who sits as a senator or member of the House of Representatives when incapable of sitting to $200 per day.

On 24 October 2017, Gordon J made orders dismissing the writ of summons pursuant to r 27.09.4 of the High Court Rules 2004 (Cth), on the basis that Mr Bell’s statement of claim did not disclose a cause of action and was otherwise frivolous or vexatious.

Subsequently, Mr Bell sought to file an application for order to show cause why certiorari should not go to quash Gordon J’s orders of 24 October 2017; mandamus should not go to the Registrar to list Matters No P43 of 2016 and No P44 of 2016 for a first directions hearing “as Ordered by then Chief Justice French on 21 November 2016”; and prohibition should not go to prohibit Gordon J “from again presiding in any matter in which the Plaintiff is a party”.

On 22 November 2017, Keane J directed the Registrar, pursuant to r 6.07.2 of the High Court Rules, to refuse to issue or file the application for order to show cause without the leave of a Justice first had and obtained by the party seeking to issue or file it. Mr Bell has now applied ex parte for leave to issue or file the application for order to show cause.

The application for order to show cause is misconceived. If Mr Bell had wished to contest the validity of Gordon J’s dismissal of the writ of summons, the way for him to do so was by application for leave to appeal pursuant to s 34(2) of the Judiciary Act 1903 (Cth). Ordinarily, in such circumstances, constitutional writ relief should be refused in the exercise of discretion[1].

[1]cf Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 471 [279] per Hayne J; [2002] HCA 16.

Apart from that, there is also a very real question as to whether certiorari will go from this Court to quash orders of the Court constituted by a single justice of the Court. Despite the amplitude of s 75(v) of the Constitution[2], the idea of this Court quashing its own orders by means of a constitutional writ of which the purpose is to ensure that officers of the Commonwealth are subject to the jurisdiction of the Court[3] is attended by significant logical hurdles.  In Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial Sugar Refining Co Ltd[4], Griffith CJ stated that the word “prohibition” as used in s 21AA of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) was inapt as referring to an order of a single justice of the High Court[5], and Isaacs, Gavan Duffy and Rich JJ stated that the jurisdiction as to prohibition conferred upon the High Court by s 75(v) of the Constitution “of course, does not include prohibition to the High Court itself”[6].  In Re Brennan; Ex parte Muldowney[7], Mason CJ tentatively concluded on the basis of Federated Engine Drivers’ and Firemen’s Association that s 75(v) does not confer jurisdiction on the High Court to issue a prerogative writ directed to a single justice of the Court. In Re Toohey; Ex parte Gunther[8], McHugh J positively concluded that a single justice of the High Court exercising the jurisdiction of the Court is not amenable to any of the prerogative writs (or as they might now be called, constitutional writs), although it is not clear to what extent his Honour’s conclusion was affected by a view which then held sway that certiorari could not go to a superior court[9].  And there is then, too, a further issue of whether, if certiorari will go in such circumstances, its availability is limited to cases of jurisdictional error[10] and, if it is, whether jurisdictional error in that context would mean the same as it does in the case of another court.

[2]    Re McBain (2002) 209 CLR 372 at 437-438 [165]-[168] per Kirby J.

[3]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 92 [20] per Gaudron and Gummow JJ, 134 [140] per Kirby J; [2000] HCA 57; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 668 [45] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ; [2007] HCA 14.

[4](1916) 22 CLR 103; [1916] HCA 55.

[5] (1916) 22 CLR 103 at 109.

[6](1916) 22 CLR 103 at 117.

[7](1993) 67 ALJR 837 at 839; 116 ALR 619 at 622; [1993] HCA 53.

[8](1996) 70 ALJR 644 at 645.

[9]R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 KB 711 at 714-715; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241 per Latham CJ; [1951] HCA 3; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 386-388 per Deane J; [1985] HCA 67; Craig v South Australia (1995) 184 CLR 163 at 174-175; [1995] HCA 58; cf Re McBain (2002) 209 CLR 372.

[10]ReMcBain (2002) 209 CLR 372 at 466 [265], 471 [279] per Hayne J.

I need not ponder such problems any further however.  In respect of Mr Bell’s claims for certiorari and prohibition, it suffices to observe that, for the reasons which Gordon J gave for dismissing the petition and the writ of summons, her Honour was unquestionably correct to do so.  Anything that I might seek to add would be a work of supererogation.

In respect of Mr Bell’s claim for mandamus, the transcript of the hearing before French CJ on 21 November 2016 discloses that his Honour did not make orders for a directions hearing in Mr Bell’s matters[11].

[11]In the Matter of Questions Referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918(Cth) concerning Senator Rodney Norman Culleton [2016] HCATrans 289.

Mr Bell’s application for order to show cause is futile.  The application for leave to issue or file the application for order to show cause is dismissed.

The Court will adjourn.

AT 9.29 AM THE MATTER WAS CONCLUDED