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

[2022] HCATrans 95

[2022] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S63 of 2022

In the matter of -

an application by KIMBERLY NICHLES for leave to issue or file

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2022, AT 1.00 PM

Copyright in the High Court of Australia

GAGELER J:   Pursuant to r 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 13 April 2022, Ms Nichles attempted to file in the Registry of this Court a document styled as an application for a constitutional or other writ.  The defendants named in the document are Baumann J, a Justice of the Federal Circuit and Family Court of Australia, and the Attorney‑General of the Commonwealth of Australia.

Under r 6.07.2 of the High Court Rules 2004 (Cth), Gleeson J directed the Registrar to refuse to issue or file the document without the prior leave of a Justice. Pursuant to r 6.07.3, by application and accompanying affidavit filed on 4 May 2022, Ms Nichles seeks that leave.

Leave to issue or file a document will be refused on an application under r 6.07.3 where the document appears on its face to be an abuse of process, 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 in respect of which leave is sought exhibits each of those features.

The document, if filed, would seek the following substantive relief: a “writ of prohibition” to restrain the Federal Circuit and Family Court from hearing and determining any further matters relating to family law proceedings in the Federal Circuit and Family Court of Australia (Division 1) that have been on foot since March 2018; a “writ of certiorari” (sic) compelling this Court to determine the family law proceedings, and all related appeals, and to overturn all existing judgments and orders in the family law proceedings and related appeals; a “writ of habeas corpus” to effect the immediate removal of Ms Nichles’ children from the custody of their father into Ms Nichles’ custody; a “writ of mandamus” compelling the Australian Federal Police to investigate complaints made by Ms Nichles during the course of the family law proceedings; and a further “writ of mandamus” compelling “all Australian Courts, Authorities and Government Entities” to provide all records relating to the family law proceedings.

The proposed grounds in support of that relief would variously contend: that orders of the Federal Circuit and Family Court have resulted in a breach of “the constitutional mandate pursuant to s 51(xxiiA) of the Constitution ... ‘not to authorise any form of civil conscription’ [sic]” by requiring Ms Nichles to produce documentation, unwillingly to “perform the work of a [b]arrister”, and to participate in the protracted family law proceedings; that Baumann J has “committed a breach of... s 5 of the Constitution” by “failing to follow the law” during the family law proceedings and has both improperly failed to recuse himself and committed a number of criminal offences; and that the Attorney‑General and other public officers have similarly committed criminal offences.  These serious allegations are made in tendentious terms and are not supported on the evidence in the accompanying affidavit.

To the extent the document, if filed, would amount to an application for a writ of certiorari (or mandamus) directed to this Court, the relief sought would fall outside the jurisdiction of the Court. This Court has no jurisdiction, under s 75(v) of the Constitution or otherwise, to direct a writ of certiorari or mandamus to itself: Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603-604, 610, 636; Re Carmody; Ex parte Glennan (2003) 77 ALJR 1202 at 1203 [6]; 198 ALR 259 at 260.

To the extent the document, if filed, would amount to an application for constitutional writs directed to State Courts or public officers of a State, the relief sought would similarly fall outside of the jurisdiction of this Court: 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 writs of prohibition, mandamus and habeas corpus directed to the Federal Circuit and Family Court to effectively restrain that Court from proceeding to hear and determine the family law proceedings on the basis of the matters alleged in the proposed grounds and accompanying affidavit would be an abuse of process.  The original jurisdiction of this Court is not properly invoked to raise issues that have been, or could and should have been, raised and determined in proceedings in another court which sits within the structure of courts from which an appeal lies by special leave to this Court in its appellate jurisdiction: Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]-[14]; 287 ALR 560 at 562-563.

The document discloses no tenable basis for any of the other relief sought.

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

AT 1.00 PM THE MATTER WAS CONCLUDED