Re Davison

McHugh J of the High Court of Australia considered an application for leave to issue a writ of summons and statement of claim. The application arose in circumstances where a prior direction had been made that no process was to be issued without the leave of a Justice. The applicant sought to commence proceedings, but the Registrar had refused to issue the originating process without the court's express permission.

The central legal issue before McHugh J was the determination of the principles governing the grant of leave to issue originating process under High Court Rules, specifically Order 58 rule 4(3). This required the court to consider when such leave might be granted, and conversely, when it should be refused, particularly in relation to whether the proposed process was frivolous, vexatious, or an abuse of process.

McHugh J reasoned that the power to grant leave was a safeguard against the commencement of proceedings that were doomed to fail or were otherwise an abuse of the court's process. His Honour applied the principle that leave should not be granted where it is plain and obvious that the statement of claim discloses no reasonable cause of action, or where the proceedings are otherwise vexatious or an abuse of process. In this instance, McHugh J concluded that the proposed proceedings fell within the category of those that should not be permitted to commence.

Consequently, the application for leave to issue the writ of summons and statement of claim was refused.