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

[2021] HCATrans 81

[2021] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S44 of 2021

In the matter of -

an application by DAVID WILLIAM KIRBY for leave to issue or file

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MAY 2021, AT 10.30 AM

Copyright in the High Court of Australia

HER HONOUR:   On 1 April 2021, the applicant filed an application seeking leave to issue or file an application dated 2 March 2021.  For the reasons that I now publish, the order of the Court is:  application filed 1 April 2021 for leave to issue or file a Form 21 application dated 2 March 2021 is refused.  I publish that order and my reasons.  I direct that the reasons be incorporated into the transcript.

On 2 March 2021, the applicant sought to file an application for orders setting aside the dismissal by Gordon and Edelman JJ of his application for special leave to appeal filed on 11 June 2020, and requiring the application to be reheard. On 3 December 2020, Gordon and Edelman JJ refused the applicant’s previous application for leave to reopen his application for special leave. On 3 March 2021, Keane J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file that document without the leave of a Justice first had and obtained by the applicant. By an application dated 26 March 2021, the applicant sought leave to file the 2 March 2021 application.

The discretion to decide whether to grant the leave sought is to be exercised by reference to the criteria set out in r 6.07.1, namely whether the proposed application “appears ... on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court”.  The application may be determined on the papers[1].  An example of an abuse of process is an attempt to relitigate a case which has already been disposed of by earlier proceedings[2].  Except in exceptional circumstances, the Court regards a subsequent application for special leave traversing substantially the same subject matter as an earlier application as an abuse of process[3].

[1]High Court Rules 2004 (Cth), r 13.03.1.

[2]Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 at 193 [33] per French CJ; Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 at 518-519 [24]-[26] per French CJ, Bell, Gageler and Keane JJ.

[3]See Re Golding (2020) 384 ALR 204 at 207-208 [11] per Nettle J, citing Smith Kline& French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 and numerous special leave dispositions.

While the Court has power to reopen an application for special leave, that power is rarely exercised having regard to the importance of finality of legal proceedings[4]:

[4]Re Sinanovic's application (2001) 180 ALR 448 at 450 [7]. See also Wentworth v Woollahra Municipal Council (1981) 149 CLR 672 at 684 per Mascon ACJ, Wilson and Brennan JJ; D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17‑18 [34]‑[36], 20‑21 [43], [45] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Atkas v Westpac Banking Corporation (2010) 241 CLR 570 at 573 [6] per French CJ, Gummow and Hayne JJ.

“[S]uch proceedings are inconvenient and expensive to the parties affected, costly in terms of public resources and also vexing to all parties concerned.  Therefore, although the reopening of a special leave application is possible, it is extremely rare for reasons that are self‑evident.  Having given attention to the issues between the parties, the justices of this court should not, except in the most extraordinary case where a change of circumstances can be shown, be required to return to the matter.  At the special leave hearing, the parties and their lawyers must expect to put in writing, and if they so elect orally, all that they wish to put in support of, or in opposition to, the application.  They must do so when it is first before the court.  The court has its own internal procedures to ensure that applications are thoroughly considered before and at the hearing.  Apart from everything else, the growing number of special leave applications makes it undesirable, and practically impossible, to impose on the court a burden of multiple hearings of the same matter.”

In Re Sinanovic’sapplication[5], Kirby J expressed the view that the “only basis for ordering the reopening of a special leave hearing would ... be where it is affirmatively shown that exceptional circumstances exist and new circumstances have arisen that require a reopening to prevent a serious miscarriage of justice because an error of fact or law has occurred in the earlier determination of the application, which error demands correction”.

[5](2001) 180 ALR 448 at 451 [7].

The applicant contends that Gordon and Edelman JJ: (a) incorrectly formed the view that the underlying proceedings under ss 150 and 150A of the Health Practitioner Regulation National Law 2009 (NSW) involved interlocutory decisions; and (b) failed to have regard or sufficient regard to ss 35A(a)(i) and (b) of the Judiciary Act 1903 (Cth). The applicant wishes to relitigate the application for special leave, but has identified no exceptional circumstances warranting the reopening of the special leave hearing, and no relevant change of circumstances. As to the first contention, Gordon and Edelman JJ’s characterisation of the relevant decisions as “interlocutory decisions” does not reveal any error of fact or law. The interlocutory nature of the relevant decisions was explained by Brereton JA in the Court of Appeal of the Supreme Court of New South Wales[6].  The applicant’s second contention has no credible basis.

[6]Kirby v Dental Council of NSW [2020] NSWCA 91 at [14], cf Licul v Corney (1976) 180 CLR 213 at 225 per Gibbs J; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 per Gibbs CJ, 253-254 per Mason J, 258 per Murphy J; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 767‑768 per Gibbs CJ (with Murphy and Wilson JJ agreeing at 768). See also Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877.

The applicant has not identified any grounds to justify reopening the application for special leave.  In any event, the application is an abuse of process because it is a further attempt to relitigate the special leave application determined against the applicant.

For these reasons, there will be the following order:  Application filed 1 April 2021 for leave to issue or file a Form 21 application dated 2 March 2021 is refused.

Court adjourned.

AT 10.31 AM THE MATTER WAS CONCLUDED