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

[2022] HCATrans 72

[2022] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C6 of 2022

In the matter of -

an application by ALAN BRADLEY JORGENSEN for leave to issue or file

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 14 APRIL 2022, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   Pursuant to rule 6.07.3, 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 21 December 2021, Mr Alan Jorgensen attempted to file an application for a constitutional or other writ in this Court. Steward J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the Registrar refuse to issue or file that document without the leave of a Justice first having been obtained.

Pursuant to r 6.07.3, by application and accompanying affidavit Mr Alan Jorgensen now seeks that leave.  These are my reasons for refusing it.

Leave to issue or file a document will ordinarily be refused on an application under r 6.07.3 where the document sought to be issued or filed appears “on its face” to be an abuse of process, frivolous or vexatious or to fall outside the jurisdiction of the Court:  Re Young (2020) 94 ALJR 448 at 451 [11]; 376 ALR 567 at 570. Implicit in the requirement that a document the subject of the application be considered “on its face” is that the application falls to be determined without an oral hearing: Re Young (2020) 94 ALJR 448 at 451 [12]; 376 ALR 567 at 570, citing Re Simmonds [2020] HCATrans 34.

Mr Alan Jorgensen’s proposed application relates to long-running litigation involving him and his twin brother, Mr Brian Jorgensen, concerning the sale of certain units in a unit trust called the Rainbow Motor Inn Unit Trust.

By this proposed application Mr Alan Jorgensen would seek a writ of certiorari to quash the decision of Henry J in the Supreme Court of Queensland in Mantonella Pty Ltd v Grancroft Pty Ltd & Ors [2015] QSC 191. By that decision, Henry J made orders that the plaintiff company controlled by Mr Alan Jorgensen provide security for the defendants’ costs and stayed the proceeding until that security was provided. Mr Alan Jorgensen would also seek a writ of certiorari to quash the decision of Logan J in the Federal Court of Australia in Jorgensen v Jorgensen (No 3) [2021] FCA 201. By that decision, Logan J made orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting him from instituting either directly or indirectly any proceeding in the Federal Court connected with or arising out of the Rainbow Trust. He would also ask this Court to “use its inherent power” to make orders effectively directed to unwinding the sale of certain units in the Trust.

The proposed application and accompanying affidavit allege that Mr Brian Jorgensen used “fraudulent means” in the proceeding before Henry J on the basis that he did not disclose that he and Henry J were close friends.  It is alleged that because of this association Henry J denied Mr Alan Jorgensen a fair hearing.  It is further alleged that in the proceeding before Logan J Mr Alan Jorgensen was denied a fair hearing including by not being allowed to cross‑examine his brother adequately on the issue of his brother’s friendship with Henry J.  The allegations are made in vague and tendentious terms.

To the extent the document, if filed, would amount to an application for a writ of certiorari directed to a judge of the Supreme Court of Queensland, the relief would fall outside the jurisdiction of this Court. This Court has no jurisdiction under s 75(v) of the Constitution to issue a writ of certiorari to the Supreme Court of a State:  R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453; Bird v NSW Council for Civil Liberties Inc (1994) 68 ALJR 497 at 498.

To the extent the document, if filed, would amount to an application for a writ of certiorari directed to a judge of the Federal Court of Australia, the document on its face fails to disclose a credible basis for considering that there has been jurisdictional error on the part of Logan J whether by way of denial of procedural fairness or otherwise.

Furthermore, considering all the material in the proposed application and the accompanying affidavit, Mr Alan Jorgensen is in substance seeking to invoke this Court’s processes to attempt to again relitigate issues concerning the Rainbow Trust and evade the ordinary curial processes of appeal.

The relief that would be sought by Mr Alan Jorgensen if leave to file the document were given either falls outside the jurisdiction of this Court or constitutes an abuse of its processes.  Accordingly, I refuse leave to issue or file the document.

AT 9.31 AM THE MATTER WAS CONCLUDED