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

[2020] HCATrans 34

Replacement Transcript

[2020] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P59 of 2019

In the matter of -

an application by LARISSA JANE SIMMONDS for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MARCH 2020, AT 9.43 AM

Copyright in the High Court of Australia

HIS HONOUR:   The applicant seeks leave to issue or file an application for constitutional writs directed towards a judge of the Family Court of Australia.  The applicant also seeks judicial review of a direction by Gordon J that the Registrar of this Court refuse to issue or file that application without the leave of a Justice first had and obtained.  For the reasons that I now publish, I would dismiss the application.

The orders are:

1.The application for review of the decision of Gordon J to make a direction under r 6.07.2 of the High Court Rules 2004 (Cth) is dismissed.

2.        The application for leave to issue or file is dismissed.

I publish those orders.

I direct that the reasons, as published, be incorporated into the transcript.

On 20 November 2019, Gordon J directed the Registrar of this Court to refuse to issue or file, without the leave of a Justice first had and obtained by the applicant, an application for a constitutional or other writ, together with associated documents.  The applicant seeks review of the direction of Gordon J, asserting that the direction denied her of procedural fairness, apparently due to the absence of reasons for that decision.  The applicant also seeks leave to issue and file the documents.

As to the review of the decision of Gordon J, that application has no prospects of success, even putting to one side the question of whether a Justice of this Court has jurisdiction to conduct judicial review of a direction given by another Justice of this Court[1].

[1]Compare R v Murray; Ex parte The Commonwealth (1916) 22 CLR 437 at 453; Re Toohey; Ex parte Gunter (1996) 70 ALJR 644 at 645; Plaintiff S164-2018A; Plaintiff S164-2018B; Plaintiff S164-2018C, In the matter of an application for leave to issue or file [2019] HCATrans 222 at lines 23-41. See also, Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117; Re Brennan; Ex parte Muldowney (1993) 67 ALJR 837 at 839; 116 ALR 619 at 622; Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603‑604, 636, 647.

The direction by Gordon J was given under r 6.07.2 of the High Court Rules 2004 (Cth). The first two sub‑rules of r 6.07 are as follows:

Refusal to issue or file a document

6.07.1If a writ, application, summons, affidavit or other document (the document) appears to a Registrar 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, the Registrar may seek the direction of a Justice.

6.07.2The Justice may direct the Registrar to issue or file the document, or to refuse to issue or file the document, without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

A direction sought by a Registrar under r 6.07.2 does not involve any substantial adjudication of the underlying merits of a claim contained in the document. It involves only a consideration of the document “on its face” to determine whether it appears to be an abuse of the process of the Court, to be frivolous or vexatious, or to fall outside the jurisdiction of the Court. Likewise, the exercise of a Justice’s wide discretion to issue the direction sought involves no substantial adjudication of the underlying merits of any claim contained in the document. Nor does it deprive any applicant of any subsequent consideration of the merits of the underlying application including any determination of that application on the papers or after an oral hearing. Rule 6.07, in context, is concerned (i) with the efficient and proportionate use of court resources, and (ii) if leave is sought by the applicant, to permit a consideration by the Court of particular applications including those that might be entirely without merit without putting a respondent to the time and expense of a response and without subjecting the applicant to potential costs of an opposed application. Any implication from r 6.07 that a person seeking to file a document commencing a proceeding is entitled to an oral hearing or any implication that the person is entitled to reasons for decision would defeat the apparent purposes of the rule. The application for review of the decision of Gordon J should be determined without being listed for hearing under r 13.03.1 of the High Court Rules 2004 (Cth). The application is dismissed.

The second application concerns the leave sought by the applicant to issue or file an application for a writ of prohibition or an injunction, or both, to restrain a Judge of the Family Court of Australia from “having any further involvement (including delivering a [judgment])” in the Full Court of the Family Court of Australia.  The application is said to arise “as a result of the hearing of [two appeals] by the Full Court on 15/10/19”.  The first defendant is not named in the proposed application for a writ of prohibition or injunction.  The first defendant is described only as a “Judge of [the] Family Court of Australia”.  Nor is there any clear description of that judge in the applicant’s materials.  The judge is variously described in the applicant’s materials as the first defendant, the “lead judge” or “senior presiding officer”.  However, it appears that the judge intended to be joined to the application is Strickland J, a Justice of the Appeal Division of the Family Court of Australia.  This is apparent from a reference in the applicant’s materials to the first defendant being the president of the Association of Family and Conciliation Courts (“the AFCC”), together with an exhibit which identifies Strickland J as holding that office, and the applicant’s focus on an alleged failure of Strickland J to recuse himself from hearing her appeals.  While the applicant included materials filed in the Family Court of Western Australia concerning an application for Sutherland J, later Sutherland CJ, to recuse herself, those materials appear to concern another proceeding which is not the subject of this application.  The applicant also seeks to join her former husband as the second defendant.

The ground of the application is said to be a perception of bias and a lack of procedural fairness which are said to have resulted in the applicant’s case “not being fully heard”.  A number of the matters relied upon concern decisions made by the Full Court, although it seems that one reason for the applicant’s decision to attempt to join the first defendant is her description of him as the “lead judge” or “senior presiding officer” on the appeals.  The judge is said to have made rulings without considering all the evidence and the court is said to have failed to give reasons for procedural rulings accepting the late filing of submissions and authorities for her former husband.  The applicant says that the perception of bias also arose because her oral case was “continually interrupted” and that the perception of bias “was self‑evident”.  An example is that the applicant says that she was “prohibited from raising details with respect to the roll over provisions of the ITAA – subdivision 328G (which includes provisions with respect to trading stock)”.

In her proposed application and supporting materials, the applicant descends into considerable detail about the decision at first instance of Walters J in the Family Court of Western Australia, and later decisions of Sutherland CJ.  She says that the “current matters involve two financial appeals with some overlapping facts”.  In the applicant’s affidavit in support of the proposed application for a constitutional or other writ, she describes the subject matter of those appeals as involving, among other things, “the continuous lack of disclosure” by her former husband of various matters relating to his financial affairs.  She also describes the conduct of the appeals in some detail, including her observations of the proposed first defendant, and states that she raised issues of perception of bias “early in the proceedings” and “finally asking for the recusal of 2 members of the bench”.  In the applicant’s affidavit supporting her application for leave, there are numerous other allegations in the materials provided by the applicant including:  (i) allegations against her former husband; (ii) allegations against his lawyers and counsel; (iii) allegations against judicial officers and other people involved in the proceedings, many of whom are said to be part of the AFCC; and (iv) allegations concerning the conduct of the AFCC itself.

The discussion above is only a very broad outline of the allegations made in the application.  Although the applicant has a law degree, the application in this specialist field should be read as the work of a litigant in person, with an eye to identifying any reasonable and coherent issues that could be said to flow from the material.  But even with this perspective, the application lacks any clear basis upon which any prospects of success could be discerned.  Further, even if the allegations by the applicant were sufficient to establish apprehended bias or a denial of procedural fairness by the proposed first defendant, which they are not, those allegations are not sufficiently supported by the underlying material.  Finally, a hearing of the application in the original jurisdiction of this Court would fragment the ordinary appeal process, including any application for special leave to appeal to this Court[2].  This is particularly so in circumstances in which the appeals have been heard, and judgment has been reserved.

[2]See Dimitrov v Supreme Court of Victoria (2017) 263 CLR 130 at 146-147 [37], see also at 138-139 [19]. See also Re Heery; Ex parte Heinrich (2001) 185 ALR 106 at 109-110 [17]-[18]; Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367.

The application for leave to issue or file has no prospects of success. There is no prospect that an oral hearing could assist in any way. It should be determined without being listed for hearing under r 13.03.1 of the High Court Rules 2004 (Cth). The application is dismissed.

AT 9.44 AM THE MATTER WAS CONCLUDED