In the matter of an application by Andrew Green for leave to issue a proceeding

In the matter of an application by Andrew Green for leave to issue a proceeding, the applicant sought leave from Hayne J of the High Court to commence a proceeding against the Federal Court sitting as the Court of Disputed Returns. The applicant's electoral petition had previously been dismissed by the Court of Disputed Returns for failing to adequately set out the facts relied upon to invalidate an election, as required by sections 355(a) and 355(aa) of the Commonwealth Electoral Act 1918 (Cth).

The legal issues before Hayne J were whether the proposed application for an order to show cause raised a "real question to be determined," and whether the conclusion of the Court of Disputed Returns that the electoral petition did not sufficiently set out the facts relied upon to invalidate the election was attended by doubt. The applicant also contended that section 368 of the Act, which states that decisions of the Court of Disputed Returns shall not be questioned in any way, was invalid, and sought to agitate this question of validity.

Hayne J reasoned that no ground in the proposed application expressly dealt with the validity of section 368 of the Act. While it was accepted that section 368 could not oust the High Court's jurisdiction under section 75(v) of the Constitution, if this were the case, no question of the validity of section 368 would arise for consideration if leave to issue the proposed application were granted. Furthermore, Hayne J concluded that it was not arguable that the judge of the Court of Disputed Returns had made any jurisdictional error. Consequently, as there was no real question to be determined, leave to issue the proposed proceeding was refused.