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

[2017] HCATrans 145

[2017] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C9 of 2017

In the matter of -

an application by ALLAN PAUL ENDRESZ for leave to issue or file

NETTLE ACJ

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 12 JULY 2017, AT 2.14 PM

Copyright in the High Court of Australia

HIS HONOUR:   On 12 April 2017, Bell J directed the Registrar pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) to refuse to issue or file a writ of summons entitled “Between: Allan Paul Endresz, Plaintiff, and The Commonwealth of Australia, Defendant” (“the writ of summons”) without the leave of a Justice first had and obtained. On 26 April 2017, the applicant filed an ex parte application seeking leave pursuant to r 6.07.3 for the Registrar to issue or file the writ of summons. On 1 May 2017, Gageler J refused the application. On 8 June 2017, the applicant presented for filing a document entitled “Ex parte Application Seeking Leave to Set Aside Interlocutory Order and to Issue or File Writ of Summons” (“the proposed application”). On 12 June 2017, Edelman J directed the Registrar pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) to refuse to issue or file the proposed application without the leave of a Justice first had and obtained. On 23 June 2017, the applicant filed this ex parte application seeking leave pursuant to r 6.07.3 for the Registrar to issue or file the proposed application.

As Gageler J recorded in his Honour’s reasons for refusing the applicant’s application of 26 April 2017, in the writ of summons the applicant claims declarations that, due to deficiencies in the Commonwealth’s pleadings, judgments obtained by the Commonwealth against him and others in the Supreme Court of the Australian Capital Territory[1] are void and of no effect.  In fact, however, the applicant appealed against judgment to the Court of Appeal of the Supreme Court of the Australian Capital Territory and the appeal was later struck out for want of prosecution[2].  A subsequent application to have judgment set aside ex debito justitiae was refused[3].  The Commonwealth then commenced bankruptcy proceedings based on the balance of the judgment debt owed – an amount of $12,833,848.18 – and an application to have the Commonwealth’s bankruptcy notice set aside was dismissed[4].  And, as Gageler J also recorded in his reasons, neither the writ of summons nor the affidavit filed by the applicant in support of his application of 26 April 2017 disclosed an arguable basis for the applicant’s claim that the judgments were void and of no effect.  Gageler J thus refused the application for leave to file the writ of summons on the basis that the proceedings would be an abuse of process.

[1]  The Commonwealth v Davis Samuel Pty Ltd (No 7) (2013) 95 ACSR 258; The Commonwealth v

[2]  Davis Samuel Pty Ltd v The Commonwealth [2016] ACTCA 22.

[3]  Davis Samuel Pty Ltd v The Commonwealth (No 2) [2016] ACTCA 26.

[4]  Endresz v The Commonwealth [2017] FCCA 352.

By the proposed application, the applicant seeks an order setting aside Gageler J’s order of 1 May 2017. In his affidavit of 22 June 2017 tendered in support of leave to file the application, the applicant contends that Gageler J erred in exercising jurisdiction to refuse the applicant leave to file the writ of summons by acting “beyond the inherent or implied original jurisdiction of the High Court”, without any force and effect by reason of the “Parliament’s power to enact Rule 6.07.2 . . . [being] explicitly beyond Section 75(iii)” of the Constitution and thus impeding the applicant’s “constitutional guarantee under Section 75(iii)” of the Constitution “to engage the High Court in its original jurisdiction”.

The grounds of the proposed application are misconceived, and for that reason alone I should be inclined to refuse the leave which is sought to file the proposed application.  In addition, however, the proposed application is incompetent.  An order of a Justice of this Court to refuse an application for leave under r 6.07.3, although susceptible to appeal by leave, may not be set aside upon ex parte application of the kind propounded by the applicant.

Accordingly, it is ordered that the application for leave for the Registrar to issue or file the proposed application is refused.

AT 2.19 PM THE MATTER WAS CONCLUDED

   Davis Samuel Pty Ltd (No 8) [2014] ACTSC 312.