Dimitrov v Supreme Court (Vic)

The plaintiff, a group member in Supreme Court of Victoria proceedings concerning managed investment schemes, sought constitutional writs of prohibition, certiorari, and injunction against orders made by Croft J approving a settlement deed. Various defendants, including the "BEN parties" and former directors of companies within the Great Southern group, applied for dismissal or summary dismissal of the plaintiff's application. The High Court of Australia was asked to consider whether it had the power to entertain the application and whether it was appropriate to invoke its original jurisdiction.

The central legal issues before the court were whether the plaintiff's application for constitutional writs was appropriate given the existence of a right to appeal the impugned orders, and whether a judge of the Supreme Court of Victoria, when exercising federal jurisdiction, could be considered an "officer of the Commonwealth" for the purposes of section 75(v) of the Constitution and section 33(1)(c) of the Judiciary Act 1903 (Cth). The court also considered the plaintiff's contention that the orders made in federal jurisdiction were beyond power as they did not involve a "matter" as defined by the Constitution.

Edelman J dismissed the plaintiff's application, applying the long-standing principle that a litigant must generally exhaust statutory rights of appeal before the High Court will entertain an application for constitutional writs. His Honour noted that it is usually inappropriate to invoke the original jurisdiction of the High Court where the decision under challenge is amenable to appeal, even if leave to appeal is required. While acknowledging that exceptions exist, such as where a clear want or excess of jurisdiction is demonstrated or a constitutional issue requires immediate hearing, Edelman J found that no such circumstances applied in this case. The court also observed that a writ of certiorari to quash the orders of Croft J would be essential to the relief sought, but that orders on appeal, with leave, could achieve the same practical effect.

The plaintiff's application for an order to show cause was dismissed pursuant to rule 25.03.3(a) of the High Court Rules 2004 (Cth). The plaintiff was also ordered to pay the costs of specific defendants.