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

[2022] HCATrans 125

[2022] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C12 of 2022

In the matter of –

an application by JANET VARCOE for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 AUGUST 2022, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 24 June 2022, the applicant seeks leave to issue or file a writ of summons and statement of claim.  For the reasons that I now publish, I would dismiss the application.  The order is:

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

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

The applicant, Ms Varcoe, sought to file a writ of summons and statement of claim in this Court. On 17 May 2022, acting pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Steward J directed a Registrar of this Court to refuse to issue or file the writ of summons and statement of claim without the leave of a Justice. Ms Varcoe now applies for that leave.

In Ms Varcoe’s proposed statement of claim she asserts that Crown Resorts Ltd, through its subsidiary Crown Melbourne Ltd, her employer, has relied upon orders made pursuant to s 200 of the Public Health and Wellbeing Act 2008 (Vic)[1] (later describing this as “the PHW Act”), or a policy consistent with those orders, to prevent her from “coming to work as its employee, absent proof of vaccination status”.  Ms Varcoe seeks relief to “invalidate the Public Health and Wellbeing Act 2008 (Vic), either in whole or in part, or in its practical operation, for inconsistency with the Fair Work Act 2009 (Cth) by way of operation of section 109 of the Constitution”.  I take this to mean that Ms Varcoe seeks a declaration to this effect.

[1]    Referring later to Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2022 (No 3) and Pandemic (Open Premises) Order 2022 (No 4).

Ms Varcoe’s proposed statement of claim alleges that the following questions of constitutional law are raised: (i) Is Crown (by which she appears to mean either Crown Resorts Ltd or Crown Melbourne Ltd or both) a trading corporation within the meaning of s 51(xx) of the Constitution? (ii) “Is the PHW Act in its practical operation or substance, properly regarded as an Industrial relations law of the State of Victoria and therefore invalid by inconsistency pursuant to s 109 of the Constitution?  If so, does the Fair Work Act 2009 (Cth) apply to Crown Resorts Limited and its subsidiaries and its employees by the operation of s 109 of the Constitution, to the exclusion of the PHW Act?”

The leave sought by Ms Varcoe should be refused for two independent reasons.

First, the proposed statement of claim provides no justification for the issues raised by Ms Varcoe to be considered in the original jurisdiction of this Court rather than other courts lower in the judicial hierarchy. Section 39B(1A) of the Judiciary Act 1903 (Cth) invests the Federal Court of Australia with jurisdiction in relation to each of the jurisdictional bases upon which Ms Varcoe relies for this Court to determine her proposed claim. In relation to orders seeking removal of a constitutional matter to this Court, it has been said that the orders should be made only where the issues are important and require this Court’s urgent decision. Two reasons for this approach are that the commencement of proceedings in the original jurisdiction of this Court denies this Court the benefit of the reasons of lower courts and allows parties to bypass the requirements of leave and special leave in the Judiciary Act[2].  Although the bringing of proceedings in the original jurisdiction of this Court does not involve interrupting of the orderly processes of the lower courts, and is not as exceptional as removal of proceedings from lower courts, these two reasons apply equally to the filing of proceedings in the original jurisdiction of this Court generally.

[2]    Bienstein v Bienstein (2003) 195 ALR 225 at 234 [45].

Secondly, whilst affording latitude to Ms Varcoe in light of her position as an unrepresented litigant, and recognising the many hours of work that she may have invested in preparing it, the proposed statement of claim is far from being in an acceptable form for proceedings in this Court.  Even if it were to be assumed that the constitutional issues that Ms Varcoe seeks to raise are properly formulated, the lack of any clarity in the factual foundations of those questions in the proposed statement of claim mean there may very well be factual disputes about the essential foundations of Ms Varcoe’s proposed relief, requiring a trial of facts that is less suitable for a final court of appeal.

More fundamentally, although Ms Varcoe’s proposed statement of claim consists of lengthy discussion and extracts from decisions of this Court, it fails to identify concisely any of the essential integers necessary for the claim for declaratory relief, including even the particular provisions of the Public Health and Wellbeing Act that in their practical operation are said to be inconsistent with the Fair Work Act 2009 (Cth).

The discretion to refuse leave to issue or file a document on an application under r 6.07.3 of the High Court Rules is exercised by a Justice by reference to the same criteria that inform the decision of the Registrar under r 6.07.1 to seek the direction of a Justice, and the decision of a Justice under r 6.07.2 to give that direction[3].  Those criteria include whether the document appears on its face to be frivolous or vexatious.  An application will be frivolous or vexatious where, because of the manner in which the issues are presented or because of the inappropriate nature of the court to which it is presented, the jurisdiction of the court has not properly been invoked[4].  The proposed application plainly exhibits both of these features.

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

[4]    See also Nichles, In the matter of an application for leave to issue or file [2022] HCATrans 95.

The proposed statement of claim is so far from being in a form that could be suitable to present constitutional issues before this Court that, combined with the lack of justification for the attention of this Court, there is no utility in an oral hearing of this application. The application for leave to issue or file the proposed writ and statement of claim should be determined without being listed for hearing, under r 13.03.1 of the High Court Rules.  The application for leave to issue or file is dismissed.

Please adjourn the Court.

AT 9.31 AM THE MATTER WAS CONCLUDED