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

[2023] HCATrans 108

[2023] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No 82 of 2023

In the matter of -

an application by LASZLO STEVEN PATAKI for leave to issue or file

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 AUGUST 2023, AT 9.34 AM

Copyright in the High Court of Australia

HER HONOUR: On 7 July 2023, the applicant filed an application seeking leave to issue or file an application, dated 4 July 2023, pursuant to r 6.07.3 of the High Court Rules 2004.  I refuse the application for leave to issue or file the proposed Application for Constitutional or Other Writ, dated 4 July 2023.  I publish my reasons, and I direct that those reasons be incorporated into the transcript.

On 4 July 2023, the applicant attempted to file an Application for Constitutional or Other Writ (“the proposed application”) seeking to commence proceedings in this Court’s original jurisdiction against the Commonwealth Attorney‑General and two other Ministers of Departments of the Commonwealth executive government.

On 5 July 2023, Jagot J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the proposed application without the leave of a Justice first had and obtained by the applicant. On 7 July 2023, the applicant sought leave from the Court to file the proposed application in accordance with r 6.07.3 of the High Court Rules.

For the following reasons, leave to file the proposed application should be refused without listing the application for a hearing[1].

[1]High Court Rules 2004 (Cth), rr 13.03.1, 25.09.1.

Mr Pataki’s claims

The proposed application was supported by Mr Pataki’s affidavit sworn on 7 July 2023.  The affidavit states that Mr Pataki was arrested without charge, placed in a police vehicle after being publicly searched and placed in a police cell.  The affidavit states that these events occurred “[f]or not complying with Australian Border Force regulations that do not apply or extend to Norfolk Island while transiting within the Commonwealth of Australia”.  The affidavit was accompanied by two further affidavits sworn by Mr Pataki on 4 July 2023, which contain additional evidence about events on 11 June 2023 involving Mr Pataki’s arrest and the seizure and retention by police of his mobile phone, and evidence about disputes between Mr Pataki and officers of the Australian Federal Police (“AFP”) and the Australian Border Force at Norfolk Island Airport.

The proposed application seeks a multiplicity of orders, commencing with the release of his personal property held by the AFP, damages to the sum of $1,500 for replacement of his mobile phone and “sundries including lost opportunity from being unlawfully denied freedom and access to all government facilities on MyGov, banking and general communications”.  Other relief sought includes an order for the cessation of AFP activity on Norfolk Island including but not limited to domestic policing and their presence at arrivals at Norfolk Island Airport.

The grounds for the relief sought, as stated in the proposed application are difficult to understand, but centre upon a contention expressed in the following terms:

“The Constitutional powers S 52 Constitution, transferred to the Executive Government of the Commonwealth to make Laws on Norfolk Island is limited to the powers to make Laws on NSW Original State.”

Under a heading “Offences”, the proposed application includes contentions that:  the Norfolk Island Act 1979 (Cth) “has exceeded the Powers of the Commonwealth in giving Domestic Policing Authority to the AFP”; the Governor‑General “has exceeded Commonwealth Powers by giving Assent to all Acts and Ordinances of Norfolk Island, inconsistent with the Cth Constitution”; and Norfolk Island is “admitted as part of Original State NSW Australia”.

From these portions of the proposed application, it appears that Mr Pataki’s claims are premised upon contentions that the Norfolk Island Act is constitutionally invalid for reasons that include because Norfolk Island is a part of the State of New South Wales.

Relevant principles

My discretion to refuse the applicant leave to file his proposed application falls to be exercised by reference to the criteria in r 6.07.1 of the High Court Rules[2].  This discretion will ordinarily be exercised where 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[3].  Given that the application is to be determined “on its face”, this necessarily means that the issue is to be determined on the papers without an oral hearing[4], and taking the facts stated by Mr Pataki at their highest.

[2]Re Young (2020) 94 ALJR 448 at 451 [11]; 376 ALR 567 at 570.

[3]Re Young (2020) 94 ALJR 448 at 451 [12]; 376 ALR 567 at 570.

[4]Re Simmonds [2020] HCATrans 34.

As noted by Gageler J, the concept of “abuse of process” is not closed, but encompasses an attempt to “invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable”[5].

[5]Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570.

Disposition

Norfolk Island is a Territory that was placed under the authority of, and accepted by, the Commonwealth within s 122 of the Constitution[6].  Since 1979, Norfolk Island has been governed pursuant to the Norfolk Island Act 1979 (Cth). Mr Pataki’s proposed application proceeds on the false premise that Norfolk Island forms a part of New South Wales and on lack of recognition of the plenary power conferred upon the Commonwealth Parliament by s 122 to make laws for the government of any Territory[7].

Accordingly, the grounds for the relief sought in the proposed application, to the extent that they are intelligible, are manifestly untenable.

For these reasons, there will be the following order:

[6]Bennettv The Commonwealth (2007) 231 CLR 91 at 98 [2].

[7]Vunilagiv The Queen [2023] HCA 24 at [27], [100]-[103].

1.Application filed on 7 July 2023 for leave to issue or file an Application for Constitutional or Other Writ dated 4 July 2023 is dismissed.

Adjourn the Court, please.

AT 9.35 AM THE MATTER WAS CONCLUDED