Conomy, In the matter of an application for leave to issue or file

[2018] HCATrans 99

[2018] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2018

In the matter of -

an application by JERROD JAMES CONOMY for leave to issue or file

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON MONDAY, 21 MAY 2018, AT 12.00 PM

Copyright in the High Court of Australia

MR J.J. CONOMY appeared in person.

HIS HONOUR:   Mr Conomy, I have read your application and the affidavit in support of it.  Is there anything which you wish to add orally to what has been said in writing already?

MR CONOMY:   Yes, I do, your Honour, I have a few things.  Your Honour, you have obviously raised this hearing because you believe that one of the requested applications I have made is an abuse of process or frivolous.  Can I ask which order in the proposed ‑ ‑ ‑

HIS HONOUR:   Well, this is an application by you for leave to file a document which has been made necessary by an order I previously made that the Registrar refuse you the ability to file a document without first obtaining the leave of a Justice.

MR CONOMY:   Yes.

HIS HONOUR:   That was made after a succession of applications by you, effectively one way or another in attempts to reinvigorate an application for special leave to appeal against the refusal by the Court of Appeal of your application for leave to appeal from Justice Martino’s dismissal of your appeal from the Magistrates Court conviction.

The reason that the order was made was because although each of the applications was to some extent formulated in a different manner it was in substance to the same effect, namely, to get reinstated the application for special leave to appeal.  Since that had been rejected by Justice Gordon for the reason that there were not sufficient prospects of success to grant special leave to appeal there appeared to be no reason to allow you to make further applications to the same effect.

MR CONOMY:   Your Honour, so again – so which of my requested orders in the proposed summons are you proposing is an abuse of process so that I can ‑ ‑ ‑

HIS HONOUR:   Mr Conomy, this is simply an application by you for leave to file a document.  It is not an interrogation session where I ask 20 questions.  If you have something to add in support of what you have put already in writing, now is your chance to put it.  If not, I will decide the matter on the basis of what you have put in writing.  Do you follow?

MR CONOMY:   I understand, your Honour, but is it not – so that I can target my written – my verbal submissions today are you able to identify which of the requested orders are you proposing that is an abuse of process, because I assume that you have raised this hearing because you believe it is an abuse of process.

HIS HONOUR:   The hearing is just to enable you, if you wish, to put something orally in addition to what you have put already in writing in support of your application for leave to file a document.

MR CONOMY:   Okay.  So there are a few things I want to raise, your Honour.

HIS HONOUR:   Very well.

MR CONOMY:   The first thing is if we could look at Justice Gordon’s reasons for decision.

HIS HONOUR:   Yes.

MR CONOMY:   On page 3, I will – if you can just let me know once you have got that up.

HIS HONOUR:   Yes, thank you.

MR CONOMY:   Now, as you can see – so if we go back to page 2 first, Justice Gordon confirms that the original application for special leave has been accepted and an extension of time has been granted, so that document has already passed a test of futility.  Now, if we come to page 3 of her Honour’s reasons, keeping in mind that my application was purely to submit a late written case - that was the only purpose of my application.  Now, if we look at the last paragraph of page 3 of Justice Gordon’s reasons, they refer to – it states:

The applicant’s special leave application advances no arguable ground of appeal against the decision of Court of Appeal.

Yet the only documents I put forward – proposed to be filed is a written case and her Honour made no consideration to those two documents.  Every successive application after that has referred to this as me applying for something to be redetermined which has already been determined, but the documents I filed originally have never been determined, which is the proposed written case.  They have never been determined in any one of those stages.

So why is Justice Gordon considering the original application for special leave, whether that has any merits of success, when that document has already been accepted for filing and has already passed a test by Justice Gordon for merit?

HIS HONOUR:   Right.

MR CONOMY:   Now, as you can see in there, Justice Gordon considers none of my written case because she found that my explanation for the lateness was not acceptable.  Now, the next thing I wanted to raise – it seems as though what Justice Gordon thought the application was was for a proposed application for special leave, a late application for a proposed application for special leave, which was not the case.  It was not the case at all.

The next thing I would like to raise is the rules that were in force at the relevant time for unrepresented applicants, in rule 41.10 it states:

The written case of an unrepresented applicant:

(a)      shall be in Form 18;

(b)      shall not exceed 10 pages; and

(c)shall be filed within 28 days of the filing of the application, together with two additional copies of the written case, the draft notice of appeal and all of the documents filed by the applicant in accordance with rule 41.01.2 -

which does not include the actual application for special leave.  So for unrepresented applicants, ironically, the application for special leave is an irrelevant document in the determination of whether special leave is granted or not, so why is Justice Gordon making her determination on a document that is not part of the written case which is the relevant document?  So why am I being treated differently from all other unrepresented applicants because there are 50, 60 applications for special leave applications which refer to the draft notice of appeal and the applicant’s written case.

They do not refer to the application for special leave because rule 41.10.3 would have asked for two additional copies of the application for special leave if it was indeed supposed to be a consideration – a document in consideration.  So Ms Gordon’s consideration of the application for special leave, which was already on file, was irrelevant, completely irrelevant.

The next thing I would like to raise – I am sorry for my tone, your Honour, I am trying to – this has been – I have been trying to get this rectified for a very long time and unfortunately the judges – and I understand, they – for practical reasons, you guys have to accept what other judges have said to some point, you cannot be spending too much time second‑guessing.  So I have been trying to put this to you guys, but my written case has never been determined, it has never been determined as a measure of futility.  There has been no - going by the reasons.

HIS HONOUR:   Yes.

MR CONOMY:   The next thing I would like to raise, your Honour – your Honour, if we could go to your reasons.

HIS HONOUR:   Yes.

MR CONOMY:   You have given several reasons, so I am referring to the – there is no date on the reasons so I will just have to work out what the date is so that we are looking at the same document.

HIS HONOUR:   It was 17 May last year.

MR CONOMY:   I am sorry.  Sorry, your Honour, that was the one that you published, yes.  So I have got – yes, 17 May.  Okay, so if we look at that.  If we come down to page 4 and the last paragraph, you have stated that:

this application is, in effect, an application for redetermination of the application already rejected by Justice Gordon.

But it was not because the application before Justice Gordon was to file a late written case and yet – and then when Justice Gordon came to evaluate that on a document that was not relevant I then sought to raise that – hang on, that document is not relevant to determining special leave so I sought to amend that document.  So the application for special leave before you was on page 100 of Affidavit D which was one of the proposed documents for filing.

HIS HONOUR:   Yes.

MR CONOMY:   With all due respect to your Honour, that is my proposed amended application for special leave.  So, it plainly is not the same application that was before Justice Gordon.  It is a proposed amended application because – I am totally confused about what is going on now so far because not one of my applications for special leave, P19 and P20, not once have they been finally determined based on the documents that are prescribed in rule 41.10 to be determined.

They have all been based on the grounds in the application for special leave documents and not to the written case and that goes against hundreds of examples of represented – unrepresented applicants having their cases determined on the draft notice of appeal and written case, so why is that not the case for me?  It is grounds for inequality.

HIS HONOUR:   All right.

MR CONOMY:   My original application for special leave was already accepted so why – and it was already accepted late, so there has already been a consideration of futility, but I am repeating something that is already said.

The next point I would like to make, your Honour – it is very upsetting.  Now, the other thing is, your Honour, when my application became abandoned by the rules, this abandoned by the rules, this happens immediately after the due date expires, whereas with represented people they have up to – I think it is 60 days or something like that for them to be able to file documents without having to go through applying for leave to file them or – you know, they can just file the documents.  They do not have to have any explanation for the lateness whereas with a represented person, we have to wait 60 – our case goes – you know what I am saying. 

So, why should I be disadvantaged by having to go through this extra step where Justice Gordon reconsiders a futility question, which she has already answered herself, merely because my application was within – was rendered abandoned and – I will just gather myself a bit here, your Honour.

The point I was getting to is when we contact the Registrar, or when we attempt to file a late written case and draft notice of appeal and what not, the Registrar came back to me and said, you will have to – because the application has been abandoned by the rules you are going to have to make a late application – sorry, you are going to have to make an application and you are going to have to use the words “reinstatement”.  So that is the Registrar telling us that we have to use the word “reinstatement”.

Now, what is happening is when the judges see the word “reinstatement” mentioned in the requested orders what has been happening is you guys have been seeing – been taking that part of the sentence that says “reinstatement”, separating that from the rest of what is ordered and you are just – you are treating it as though it is a separate requested order for this reinstatement.  But that is only part of the – that is the terminology that we are told to use when all we are actually doing is we are trying to amend a document or we are trying to file documents.

We only use the word “reinstatement” because of this ridiculous unfair law which renders our cases abandoned in a different way than to represented folks.  So that is – it is ridiculous to say that my – all of my applications have been ‑ for an application have already been determined merely because my requested orders mention the word “reinstatement” because of what we are told to do by the Registrar.

If it was up to me, I would have just said, I would like to apply to file a late written case and draft notice of appeal.  I would never have mentioned reinstatement because I would simply say, I would request – like I have done in this application to you – I would request exemptions from the rules to file this late – there has been – never have I applied to have something determined that has previously been determined.  It has never happened.

Now, in my application to you, your Honour – so in my summons before you dated 26 April 2017, if we go to my sixth requested order, I have even stated here:

As a result of an unexpected process taken by the honourable Justice Gordon in processing my previous summons application and to present further fresh medical evidence . . . the applicant requests orders that this matter be re‑instated –

because that is the terminology that Ms Musolino asked us to use – it says that we have to apply for reinstatement, and the sentence continues:

that an extension of time be granted –

blah, blah, blah, and:

that the proposed documents for satisfying rule 41.10.3, as have been lodged for filing be accepted for filing and –

So this is all still in the same sentence:

and that a proposed amended form 23 –

which is the application for special leave:

be accepted for filing ‑ ‑ ‑

HIS HONOUR:   Yes.

MR CONOMY:   So I have asked for a proposed – proposed amendments, and that is all part of the order 6.  Yet, you guys just take the word “reinstated” and you just totally withdraw that from the whole rest of the paragraph and you process it like that.  Why do you do that when it is clear that the application is not the same?  You cannot consider part of the sentence, withdraw it, and then treat that as if I have applied just for reinstatement all by itself, which is exactly what has happened on every time so far.

So I made it clear in the summons that it was for a proposed amended form 23 and then if we come through to the affidavit in support, Affidavit D, I explained in Affidavit D the situation with rule 41.10, not specifying that an application for special leave is relevant to anything in the deciding of an unrepresented applicant’s application for special leave.  I explained that in the Affidavit D.

But, in any case, I proposed ‑ given that someone is going to actually consider that document, I proposed that I amend that document which was merely re‑presenting what was on the draft notice of appeal before Justice Gordon into the amended application for special leave, which – and you cannot say that my original application – you cannot say that my original written case, proposed written case, was considered because nothing in Justice Gordon’s reasons makes any consideration to the written case or the draft notice of appeal in her reasons for decision.  She did not even consider it because she did not find that the – it was a good enough explanation for the time delay.

Yet the time delay was caused because Ms Musolino does not seem to think that it is a relevant consideration but when she set due dates for certain documents and steps to be considered, she does not believe that that should take into consideration that I have already got another application in the process and I have to finish that one first.  No, no, she just says, no, you have got to do two applications for special leave and complete all the two steps in the same time that is assigned to one.  I have raised that in my affidavit as well.  So I am – I have had a bloody gutful of it, your Honour.

HIS HONOUR:   Very well.

MR CONOMY:   Do you have any questions, your Honour?  Would you like to say specifically why you believe that this is an abuse of process, given that Justice Bell’s decision and the appeal – the application for leave to appeal from Justice Bell’s decision was relevant to Justice Bell’s decision, was not relevant to your decision, so it has nothing to do with it?  I have never applied to appeal your decision and it is – and that is because it was my understanding that your decision was made within the appellate jurisdiction.

So I wanted to ask – so I have requested to know what in your decision, your Honour, which jurisdictions were you – so I have applied for – you know, I have applied to know which jurisdictions were you exercising for both of the orders made in your decision, your Honour, because I cannot know what to do now because it seems that it might be, after all this, after all this time, me thinking that it was under the appellate jurisdiction and without anyone – any of these judges saying that it was the wrong jurisdiction or I should have been taking it up in another way.

So I am asking you today what jurisdiction were you enforcing when you made the two orders that you made on 19 April, given that you have ordered that the application be dismissed and yet the second order you have made – you are claiming that it is pertinent to rule 6.07.2 but rule 6.07.2 does not come into effect unless the Registrar actually engages a – the Registrar refuses to accept those documents for filing and yet those documents were never – they were accepted for filing.  So I cannot see how you can make an order in relation to 6.07.2 which requires a process – so in rule 6.07.1 it states:

If a writ, application, summons, affidavit or other document . . . appears to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court, the Registrar may seek the direction of a Justice.

Now, that did not happen because the documents before you were accepted for filing and they were determined under the root cause, which was P20 of 2016.

Now, you are purporting that your order was in alignment with rule 6.07.2.  You have said that the ‑ as I have just explained, that does not come – that was never available to you because the documents were accepted for filing.  You cannot make – with respect, your Honour, you cannot make rules purporting to be in alignment with 6.07.2 in relation to documents that have not been – which in relation to documents that have already been accepted for filing.

HIS HONOUR:   Yes.

MR CONOMY:   The second point I would like to make about the second order that you made is that you have totally – you have made an order that affects my ability to file documents in the matter, in P20 of 2016, in all future documents.  But you cannot do that.  You can – rule 6.07.2, orders can only be made in relation to the documents in question.  You cannot make an order making a blanket refusal.  You cannot make a blanket order that causes me to have to file every successive application in P20 of 2016.  There is no avenue for you to make those orders.  So, you know, I am sick and tired of being screwed around, your Honour, and that is all I have got to say.

HIS HONOUR:   Thank you.

MR CONOMY:   So, I am sorry, your Honour, so can you please advise me which jurisdiction you were exercising when you made order 1 on 19 April 2018 that the application be dismissed?

HIS HONOUR:   Mr Conomy, I regret I cannot advise you.  That is the function of a solicitor or barrister.  I am here only to determine your application as proposed.

MR CONOMY:   But I have requested directions in alignment with the High Court Rules, your Honour.

HIS HONOUR:   Yes.

MR CONOMY:   I need these directions in order to be able to take the next step.

HIS HONOUR:   I understand what ‑ ‑ ‑

MR CONOMY:   There are no barristers or solicitors who can answer that question near me.

HIS HONOUR:   Right.  Well ‑ ‑ ‑

MR CONOMY:   Now, I have asked – I have attempted to ask the Registrar, saying which jurisdiction was being enforced in the making of those two orders but she has just ignored me and will not answer the question.  So that is why I have raised this application, because I need to know this, I need to know this – it is a – it comes – if the High Court Rules state that your Honour can exercise either jurisdiction in the same hearing then how are we supposed to know which jurisdiction was exercised?  How am I supposed to know if I have a right of appeal by leave to appeal if I do not know what jurisdiction it is?

HIS HONOUR:   Yes, I understand.

MR CONOMY:   Your Honour, I am asking for your directions, please.

HIS HONOUR:   Yes, very well.  I have heard what you have had to say, Mr Conomy.  What I am going to do is consider my decision and after I have reflected upon what you have said and looked again at your papers I will produce a decision which will be published.

MR CONOMY:   Thank you, your Honour.

HIS HONOUR:   I propose to reserve my decision in this matter.  I adjourn sine die.

AT 12.31 PM THE MATTER WAS ADJOURNED