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

[2021] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S167 of 2021

In the matter of -
an application by HAYDYN HASTWELL for leave to issue or file

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.30 AM

HIS HONOUR: I refuse the application for leave to issue or file the proposed application for a constitutional or other writ. I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 22 September 2021, Mr Haydyn Hastwell lodged with the Registry for filing a document identified as an application for a constitutional or other writ naming this Court and the New South Wales Health Care Complaints Commission as defendants.

Mr Hastwell’s attempt to file the document evidently arose out of his dissatisfaction with the dismissal on 12 August 2021 by Keane and Edelman JJ in Hastwell v Health Care Complaints Commission [2021] HCASL 140 of his application for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales in Hastwell v Health Care Complaints Commission [2021] NSWCA 22 dismissing his application for leave to appeal from the decision of Rothman J in the Common Law Division of the Supreme Court of New South Wales in Hastwell v Health Care Complaints Commission [2020] NSWSC 728.

On 23 September 2021, Gleeson J made a direction under r 6.07.2 of the High Court Rules 2004 (Cth), directing the Registrar to refuse to issue or file the document without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

Pursuant to r 6.07.3, by application and accompanying affidavit both filed on 11 October 2021, Mr Hastwell seeks that leave.

These are my reasons for refusing the leave sought. They are to be read with my contemporaneously published reasons in In the matter of an Application by Haydyn G Hastwell for Leave to Issue or File (S131 of 2021) where the relevant principles of law are set out.

By filing the document identified as an application for a constitutional or other writ, Mr Hastwell would seek either a writ of certiorari directed to this Court quashing the decision of Keane and Edelman JJ or a writ of mandamus directed to this Court compelling the grant of his already dismissed application for special leave to appeal and the hearing of his appeal.

The document, if filed, would amount to an application for a writ of certiorari or of mandamus directed to this Court. The relief sought would fall outside the jurisdiction of the Court. The leave he seeks must therefore be refused.

AT 9.31 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

This matter concerned an application for leave to issue or file an application for judicial review of a decision made by the respondent, the Australian Securities and Investments Commission (ASIC). The applicant, Hastwell, sought to challenge ASIC's refusal to grant him leave to commence proceedings against a company under section 1317G of the *Corporations Act 2001* (Cth).

The central legal issue before Gageler J was whether the applicant had demonstrated a sufficient prospect of success in the proposed substantive proceedings to warrant the grant of leave to proceed with the judicial review. This required an assessment of whether ASIC's decision to refuse leave under section 1317G was affected by an error of law.

Gageler J considered the principles governing the grant of leave under section 1317G, which requires the applicant to show a *prima facie* case that the company has contravened certain provisions of the *Corporations Act* and that the contravention has caused, or is likely to cause, material prejudice to the company or its members. His Honour found that the applicant had not established a sufficient prospect of success in demonstrating that the company had contravened the relevant provisions, nor that material prejudice had been caused. Consequently, leave to file the application for judicial review was refused.

CaseChat Overview and Summary

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Background to the litigation

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