IN THE MATTER OF AN APPLICATION BY SIMON GOLDING FOR LEAVE TO ISSUE OR FILE
Re Golding
[2020] HCA 38
Date of Judgment: 21 October 2020
B35/2020
ORDER
Application dismissed.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Golding
High Court – Appellate jurisdiction – Application for special leave to appeal – Abuse of process – Where applicant applied for special leave to appeal – Where applicant previously made application for special leave to appeal – Where previous application for special leave refused – Where substance of subsequent application for special leave substantially identical to substance of previous application for special leave – Where no exceptional circumstances identified in subsequent application explaining failure to raise novel issues in previous application – Whether subsequent application for special leave an abuse of process.
Words and phrases – "abuse of process", "application for special leave to appeal", "compelling explanation or circumstance", "exceptional circumstance", "interlocutory application", "res judicata", "same subject matter", "special leave".
NETTLE J. The applicant requires an extension of time in which to seek leave to issue or file a second application for special leave to appeal against orders of the Court of Appeal of the Supreme Court of Queensland (Gotterson, Morrison and McMurdo JJA), dismissing the applicant's appeal against conviction of an offence of the importation into Australia of a commercial quantity of a border controlled substance, namely, cocaine, contrary to s 11.2A(1) and (2) and s 307.1(1) of the Criminal Code (Cth).
On 4 September 2019, the applicant applied for an extension of time in which to seek special leave to appeal on grounds that the Court of Appeal had erred in failing to hold that the Australian Crime Commission's examination of the applicant, after he had been charged with the subject offence, was an abuse of process that so undermined his common law right to silence and so violated the statutory responsibilities of the Australian Crime Commission and the Australian Federal Police as to bring the administration of justice into disrepute.
On 12 February 2020, Bell J and I dismissed the application on the basis that the applicant had not identified prejudice arising from his compulsory examination by the Australian Crime Commission sufficient to engage the principles in Strickland (a pseudonym) v Director of Public Prosecutions (Cth)[1], and, thus, that any appeal to this Court would not enjoy a sufficient prospect of success to warrant a grant of special leave to appeal[2].
The applicant filed this second application for extension of time and special leave to appeal on 14 April 2020 and, on 7 May 2020, Gageler J directed, pursuant to r 6.07 of the
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Golding [2020] HCA 38
Case
[2020] HCA 38
Decision Date
CaseChat Overview and Summary
Nettle J of the High Court considered an application for special leave to appeal made by Mr Golding. Mr Golding had previously made an application for special leave to appeal which had been refused. The substance of the subsequent application was substantially identical to the previous one, and no exceptional circumstances were identified to explain why novel issues had not been raised in the earlier application.
The central legal issue before the Court was whether Mr Golding's subsequent application for special leave to appeal constituted an abuse of process, given the prior refusal of an identical application and the absence of any compelling explanation for the re-litigation of the same issues.
Nettle J reasoned that the proposed grounds of appeal in the current application added nothing in substance to those advanced in the first application. Furthermore, there was no reason to doubt the correctness of the holdings that were the subject of the grounds of appeal. Applying principles concerning abuse of process and the finality of litigation, particularly in the context of applications for special leave, his Honour concluded that the subsequent application was indeed an abuse of process.
Pursuant to rule 13.03.1 of the High Court Rules, Nettle J directed that the application be determined without listing it for hearing and ordered that the application be dismissed.
Orders
Orders of the court
Application dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
NETTLE J
Lest it be thought, however, that so to conclude may be to deprive the applicant of a chance of acquittal otherwise fairly open to him, it is also to be observed that proposed Grounds II and III add nothing in substance to what was advanced in support of the first application, and, on the material advanced in support of this application, there is no reason to doubt the correctness of the holdings the subject of those grounds.Conclusion For these reasons, I direct, pursuant to r 13.03.1 of the High Court Rules, that the application be determined without listing it for hearing. It is ordered that the application be dismissed.