Tucker, In the matter of an application for leave to issue a proceeding

[2016] HCATrans 179

[2016] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2016

In the matter of -

an application by MICHAEL DAVID TUCKER for leave to issue a proceeding

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 AUGUST 2016, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   Michael David Tucker (“the applicant”) filed an “Application for Appeal” dated 5 April 2016 against “the whole of the judgment of the Kalgoorlie District Court [sic], (Judge Scott) given on 4 September 2015”.

The “Application for Appeal” does not comply with the requirements of rule 41.01 of the High Court Rules 2004 (Cth), and for that reason is incompetent, and was filed outside the 28 days provided for by rule 41.02.1 without the applicant seeking dispensation from that time limit in accordance with rule 41.02.2.

On 21 June 2016, her Honour Justice Gordon directed the Registrar pursuant to rule 6.07.2 to refuse to issue or file the application to appeal without the leave of a Justice first had and obtained by the applicant.

By ex parte application and supporting affidavit filed on 1 August 2016, the applicant seeks leave pursuant to rules 6.07.2 and 6.07.3 to issue the proceeding the subject of Justice Gordon’s direction.

As appears from the “Application for Appeal”, the applicant seeks to appeal “under Section 73(ii) of the Commonwealth Constitution” on grounds that:

[T]he State of Western Australia was constituted using an unlawful State Constitution.  The correct, lawful Constitution of Western Australia was put in place with a Letters Patent on the 29th of October 1900 by Queen Victoria.

And that:

The Statute of Monopolies states that only the Monarch can change Letters Patent.  The Parliaments of the Commonwealth can not.

It may be inferred that the applicant seeks to contend that Judge Scott erred in rejecting such an argument when it was put to his Honour, and thus that the applicant was wrongly convicted of an offence with which he stood charged. Why that should be thought to attract a right of appeal “under section 73(ii) of the Commonwealth Constitution” is not immediately apparent.

It is, however, sufficient to dispose of this ex parte application to observe that, on whatever basis it may be thought to rest, the proposed appeal and proposed grounds of appeal are manifestly misconceived and untenable and consequently that the “Application for Appeal” is vexatious and oppressive.

Accordingly, the ex parte application is refused.

AT 9.32 AM THE MATTER WAS CONCLUDED