Conomy, In the matter of an ex parte application for leave to issue or file a document

[2017] HCATrans 154

[2017] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P24 of 2017

In the matter of -

an ex parte application by JERROD JAMES CONOMY for leave to issue or file a document

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 15 AUGUST 2017, AT 9.45 AM

Copyright in the High Court of Australia

HIS HONOUR:   For the reasons that I now publish I dismiss this application.  I instruct that the reasons as published are incorporated into the transcript.

On 17 May 2017, Nettle J ordered, among other things, that pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) ("the Rules") the Registrar be directed to refuse to issue or file any further document tendered by the applicant for issue or filing in this proceeding without the leave of a Justice first had and obtained by the applicant.

The applicant had, on 10 May 2016, filed an application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia given on 18 February 2016; and on 7 June 2016, that application was deemed to have been abandoned by operation of the Rules. On 7 April 2017, Gordon J dismissed an application for reinstatement of the application for special leave; and on 17 May, Nettle J dismissed a further application for reinstatement, in addition making the order referred to above.

On 1 June 2017, the applicant presented a further summons and a supporting affidavit ("the further documents").  The further documents seek the reinstatement of the application for special leave to appeal.

In obedience to the order of Nettle J, the Registrar refused to file the further documents; and on 14 June 2017, the applicant filed a summons seeking leave to issue or file the further documents.

I approach the question whether leave should be granted on the footing that leave should be granted if it is shown that the interests of justice require that course.

I note that the applicant seeks, by par 6 of the summons presented for filing on 1 June 2017, that "any decision, as to whether the proposed documents have any prospects of success for gaining special leave be put back until the proper determination of special leave by two justices."  But the question is whether the interests of justice favour the continuation of the proceeding, and that question cannot be answered without regard to the applicant’s prospects of success in the proceeding.  The interests of justice do not favour facilitating the prolongation of proceedings that have no prospect of ultimate success.

It is evident that the applicant’s application for special leave is bound to fail.  No reason to doubt that the decision of the Court of Appeal was correct is shown by the papers previously filed in support of the application for special leave.

The further documents do not furnish any reason, not previously identified, which might now give rise to a doubt as to the correctness of the decision of the Court of Appeal.  In addition, to the extent that the applicant seeks to rely upon evidence not before the Court of Appeal, it was decided in Mickelberg v The Queen[1] that this Court has no power to receive fresh evidence on an appeal to this Court under s 73 of the Constitution.

[1] (1989) 167 CLR 259.

In these circumstances, I am unable to conclude that the interests of justice warrant the grant of leave to file the further documents.

Accordingly, leave to file the further documents is refused.

The Court will now adjourn until 10.15 am.

AT 9.46 AM THE MATTER WAS CONCLUDED