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

[2021] HCATrans 179

[2021] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2021

In the matter of -

an application by SONYA LESLEY GAPES for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 2 NOVEMBER 2021, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 24 August 2021 the applicant seeks leave to issue or file an application for removal under section 40 of the Judiciary Act 1903 (Cth) of the whole of a cause into this Court. For reasons that I now publish I dismiss the application.

The orders are:

1.        The application for leave to issue or file be dismissed.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The applicant, Ms Gapes, seeks to bring an application under s 40 of the Judiciary Act 1903 (Cth) to remove into this Court a cause pending against her, which she describes as involving 128 charges under the Animal Care and Protection Act 2001 (Qld). Ms Gapes said that the matter “urgently requires a transfer to the [H]igh [C]ourt of Australia and a [F]ull Bench”. In an affidavit seeking urgent determination of her application, Ms Gapes raises matters relating to her children and the eviction of her mother and says that “[d]ue to being labelled vexatious and support [sic] of false claims and perjury I struggle to get documents filed in this court and the family court”.

On 10 August 2021, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Gageler J directed the Registrar to refuse to issue or file the application for removal without the leave of a Justice first had and obtained by the applicant. Ms Gapes now seeks leave to issue or file the application for removal pursuant to r 6.07.3.

The discretion to grant or refuse leave on an application made under r 6.07.3 falls to be exercised by a Justice by reference to the same criteria as those which inform the action of the Registrar under r 6.07.1[1].  The discretion to refuse leave will be exercised by a Justice where it appears “on its face”, involving an assessment on the papers, that the application is an abuse of the process of the Court, is frivolous or vexatious, or falls outside of the jurisdiction of the Court[2].

[1]Re Young (2020) 94 ALJR 448 at 451 [11]; 376 ALR 567 at 570.

[2]Re Young (2020) 94 ALJR 448 at 451 [11]‑[12]; 376 ALR 567 at 570.

The antique description of an application as “frivolous or vexatious” includes an application that is, on its face “so obviously untenable that it cannot possibly succeed”[3].  In this respect, the application will also be an abuse of the process of the Court[4].

[3]Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92. See also Bayne v Ballieu (1908) 6 CLR 382 at 399.

[4]Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570.

Much of Ms Gapes’ application for removal is unintelligible. It includes unsubstantiated allegations of corruption, misconduct, or perjury, and allegations that the parties, legal representatives, Justices, and “court parties” have aided and abetted criminal offences.  Nowhere in Ms Gapes’ application or affidavit materials is there clearly identified any “cause or part of a cause arising under the Constitution or involving its interpretation” as required by s 40 of the Judiciary Act 1903 (Cth)[5].  Even if such an issue were clearly identified, the matter is not suitable for removal into this Court.  It does not come close to reaching the high threshold for removal. In reasons which have been relied upon many times in this Court[6], the Full Court in Bienstein v Bienstein[7] said:

[5]See O’Meara v McTackett (2000) 74 ALJR 1010 at 1011 [4]; 172 ALR 342 at 344.

[6]See Re Young (2020) 94 ALJR 448 at 453 [26]-[27]; 376 ALR 567 at 573. See also Henke v The Queen [2008] HCATrans 116 at 2; Golding v The Queen [2015] HCATrans 199 at 7‑8. See further Luck v Principal Officer of Peninsula Health [2015] HCASL 207; Dickens v Dickens [2017] HCASL 325.

[7](2003) 195 ALR 225 at 234 [45].

“Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this court’s urgent decision should the court make an order for removal. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to bypass the special leave and leave requirements of the Judiciary Act. The s 40(1) power to remove is not intended to convert this court into a court exercising a general supervisory jurisdiction over lower courts.”

This reasoning applies with equal or even greater force where the removal would “fragment ... pending criminal process against [an] applicant”[8].

[8]O’Meara v McTackett (2000) 74 ALJR 1010 at 1011 [4]; 172 ALR 342 at 344.

Ms Gapes’ proposed removal application is so obviously untenable as to be frivolous or vexatious or an abuse of process.  The application filed on 24 August 2021 for leave to issue or file, is refused.

Please adjourn the Court.

AT 9.31 AM THE MATTER WAS CONCLUDED