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

[2022] HCATrans 9

[2022] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2022

In the matter of -

an application by NAISBY for leave to issue or file

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 FEBRUARY 2022, AT 9.32 AM

Copyright in the High Court of Australia

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

Mr Naisby and Ms Naisby have been engaged in litigation concerning property and parenting orders since 2016.  On 5 June 2020, a judge of the Federal Circuit Court made final parenting orders and property orders. 

Mr Naisby appealed both the parenting orders and property orders to a Full Court of the Family Court of Australia.  On 2 March 2021, on the hearing of the appeal, the Full Court dismissed Mr Naisby’s appeal from the parenting orders with the consent of Mr Naisby, Ms Naisby and the Independent Children’s Lawyer.

On 16 July 2021, Mr Naisby attempted to file an application in in the Appeal Division of the Family Court of Australia seeking to reinstate the appeal against the parenting orders.  An Appeal Registrar refused to accept the application for filing.  On review, Ainslie‑Wallace J, affirmed the decision of the Appeal Registrar.  Her Honour found that the Full Court’s order dismissing the parenting appeal had concluded that proceeding and exhausted the jurisdiction of the Court.  Her Honour also considered at some length and rejected Mr Naisby’s contentions that he was pressured into consenting to the orders dismissing the parenting appeal by the Full Court.

On 9 December 2021, Keane and Edelman JJ dismissed Mr Naisby’s application for special leave to appeal from the judgment of Ainslie‑Wallace J in Naisby v Naisby [2021] HCASL 237.

Mr Naisby subsequently sought to file a document styled as an application for special leave to appeal from the Full Court’s orders of 2 March 2021 dismissing the parenting appeal. On 24 December 2021, Steward J made a direction under r 6.07.2 of the High Court Rules 2004 (Cth) by which he directed 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 January 2022, Mr Naisby now seeks that leave.

Mr Naisby’s proposed application for special leave to appeal seeks to discharge the orders of the Full Court and to reinstate the parenting appeal in that Court.  The proposed grounds of appeal would seek to impugn the Full Court’s alleged conduct in pressuring Mr Naisby into agreeing to the parenting appeal’s dismissal.  In his accompanying affidavit, Mr Naisby contends that it had not previously occurred to him to seek special leave to appeal from the Full Court’s orders.  He acknowledges that he has pursued the pathway of reinstating the appeal in the Family Court and has been unsuccessful in that Court and in his application for special leave to appeal. 

Leave to issue or file the 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 the process of the Court, to be 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.

The document, if filed, would seek to traverse issues raised and disposed of before Ainslie‑Wallace J in the Family Court, a decision from which this Court has already refused to grant special leave to appeal.  It is an abuse of process to attempt to relitigate issues already disposed of by earlier proceedings:  Walton v Gardiner (1993) 177 CLR 378 at 393; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 193 [33]. Further, in the absence of exceptional circumstances, a subsequent application for special leave traversing substantially the same subject matter as an earlier application is an abuse of process: Re Golding (2020) 94 ALJR 1014 at 1018 [11]; 384 ALR 204 at 208.

Accordingly, I refuse leave to issue or file the document.

AT 9.32 AM THE MATTER WAS CONCLUDED