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

[2021] HCATrans 123

[2021] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2021

In the matter of -

an application by KIMBERLY NICHLES for leave to issue or file

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 5 AUGUST 2021, AT 9.31 AM

Copyright in the High Court of Australia

HER HONOUR: Matter number S100/2021 is an ex parte application for leave to issue or file an application for a constitutional or other writ. On 28 June 2021 Justice Gageler directed that pursuant to rule 6.07.2 of the High Court Rules 2004 (Cth) the application for a constitutional or other writ was not to be issued or filed without the leave of a Justice first had and obtained by the applicant. This is an application for that leave.

Pursuant to rule 6.07.2 and 13.03.1 of the High Court Rules, I direct that the application for leave to issue or file be determined without an oral hearing.  For reasons that I now publish, the ex parte application for leave to issue or file should be refused.  I publish those reasons.  I direct that the reasons as published be incorporated into the transcript.

In matter number S100/2021, the order of the Court is:

1.The ex parte application for leave to issue or file the application for a constitutional or other writ is refused.

I publish that order.

This is an ex parte application for leave to issue or file an application for a constitutional or other writ. On 28 June 2021, Gageler J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the application for a constitutional or other writ was not to be issued or filed without the leave of a Justice first had and obtained by the applicant. This is an application for that leave.

I have read the applicant’s three affidavits, which also effectively include the applicant’s submissions.  The application for a constitutional or other writ lists a single respondent – the “Registrar of the Federal Court of Australia, Canberra”.  The application and supporting affidavits indicate that the applicant lodged a complaint with the Australian Human Rights Commission (“the Commission”) under the Australian Human Rights Commission Act 1986 (Cth) (“the Human Rights Act”) in May 2021 which has not been terminated under that Act. The applicant asserts she is entitled to seek an injunction, by way of interim relief, in the Federal Court of Australia in relation to that complaint consistent with Div 2 of Pt IIB of the Human Rights Act and, in particular, the express terms of s 46PP. The power of the Federal Court to grant such an injunction is not in dispute and, contrary to the premise of the applicant’s application to this Court, the existence of the power was not the basis for the Federal Court Registry refusing to accept the applicant’s application for interim relief. The affidavits filed by the applicant record that the Federal Court refused to accept the applicant’s application because the applicant did not lodge the prescribed forms notwithstanding that a Client Services Officer of the Federal Court provided the applicant with a link to the prescribed forms and told the applicant that, under s 46PT of the Human Rights Act, the Commission might be able to assist her to complete the forms. 

Rule 34.163 of the Federal Court Rules 2011 (Cth) does provide that a person who wants to start a proceeding under the Human Rights Act must file an originating application in accordance with Form 116 accompanied by, among other things, a notice of the termination of the complaint given by the President of the Commission. Section 46PP of the Human Rights Act is, however, expressed to no longer apply once a complaint has been terminated. In practice, an applicant for an interim injunction under s 46PP would not file a notice of termination when filing a Form 116 and an accompanying interlocutory application for interlocutory orders. The applicant has not filed a Form 116 in the Federal Court or attempted to comply with r 34.163.

Instead, the applicant effectively seeks to have this Court hear and determine, at first instance, an application for an interim injunction under s 46PP of the Human Rights Act. Section 46PP does not confer jurisdiction on this Court. The application for a constitutional or other writ does not disclose an arguable basis for relief, is an abuse of the process of the Court and otherwise does not comply with the requirements of Pt 25 of the High Court Rules. 

Pursuant to rr 6.07.2 and 13.03.1 of the High Court Rules, I direct that the application for leave to issue or file the application for a constitutional or other writ be determined without an oral hearing.  The ex parte application for leave to issue or file the application for a constitutional or other writ is refused.

Adjourn the Court.

AT 9.32 AM THE MATTER WAS CONCLUDED