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

[2023] HCATrans 98

[2023] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 2023

In the matter of -

an application by ZHANYU ZHONG for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2023, AT 9.28 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 15 June 2023 the applicant seeks leave to issue or file a writ of summons.  For the reasons I now publish I would dismiss the application.  The orders are:

1.The application for leave to issue or file a writ of summons, filed on 15 June 2023, be dismissed.

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

By a proposed writ of summons dated 2 May 2023 the applicant seeks various relief against the Court of Appeal of the Supreme Court of Victoria (the first proposed defendant) and the Attorney-General for the State of Victoria (the second proposed defendant). On 3 May 2023, Jagot J, acting under r 6.07.2 of the High Court Rules 2004 (Cth), directed that the Registrar of this Court refuse to issue or file the proposed writ of summons without first obtaining the leave of a Justice of this Court. The applicant now applies under r 6.07.3 for that leave

The basis upon which the applicant’s proposed writ of summons seeks relief in the original jurisdiction of this Court, as best discerned from his proposed writ and supporting affidavit, involves claims and allegations against various institutions of the State of Victoria, including the first and second proposed defendants, Victoria Police, the Office of Public Prosecutions Victoria, and the Magistrates’ Court of Victoria.

The applicant’s claims include allegations that the various institutions have violated his fundamental human rights under the International Covenant on Civil and Political Rights (“the ICCPR”) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”). These claims appear to relate to the applicant’s conviction for a charge of incitement to murder contrary to s 321G of the Crimes Act 1958 (Vic).

In broad summary, the relief sought apparently only against the first and second proposed defendants in the applicant’s proposed writ of summons is: a declaration that Victoria Police, the Office of Public Prosecutions Victoria, the Magistrates’ Court of Victoria, the Court of Appeal of the Supreme Court of Victoria, and the Attorney-General for the State of Victoria have violated the applicant’s fundamental human rights arising under Arts 2, 3, 7, 9, 14 and 26 of the ICCPR and ss 8, 10, 24, 25, 32, 38 and 39 of the Charter; a declaration that the applicant’s conviction of incitement to murder was unlawful and that the trial was unfair and was not conducted according to law; a declaration that the jury selection process at the applicant’s trial was unlawfully conducted; a declaration that certain evidence at the applicant’s trial was inadmissible and unlawfully admitted; a declaration that the police abused the court process maliciously; orders quashing the applicant’s conviction, acquitting the applicant, and setting aside orders made by the trial judge; and orders directing the second proposed defendant to refer the applicant’s other petitions to the relevant court for review.

In so far as the relief sought in the proposed writ concerns decisions of the Court of Appeal of the Supreme Court of Victoria (which, as annexed to the applicant’s affidavit, concerned an application decided in 2003 refusing leave to appeal from the applicant’s conviction and an application decided in 2023 refusing leave to bring a second appeal) the applicant has not identified whether an application for special leave to appeal to this Court was available, or whether one was sought, from those decisions. It will rarely be appropriate for the original jurisdiction of this Court to be exercised in relation to issues that have been, or which could or should have been, the subject of an application for special leave to appeal.  To the extent that the proposed writ circumvents the established process for appeals to this Court, or attempts to relitigate matters that may have been the subject of an application for special leave to appeal, it is an abuse of process[1].

[1]      See Dimitrov v Supreme Court of Victoria (2017) 263 CLR 130 at 138-139 [19]; 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.

In any event, nothing in the applicant’s writ or supporting affidavit provides any basis for rational legal argument that could support the relief sought.  The claims advanced in the proposed writ and supporting affidavit are manifestly hopeless and it would be an abuse of process if those documents were filed[2].  They should not be issued or filed[3]. There is no possibility that any oral submissions in this Court could further advance the application for leave to issue or file the proposed writ and supporting affidavit. The application for leave to issue or file should be dismissed on the papers without listing it for an oral hearing under r 13.03.1 of the High Court Rules.

[2]      Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476 at 486-487 [35], 487 [37], 494 [72]-[73]; 400 ALR 1 at 10, 11, 20.

[3]      See High Court Rules 2004 (Cth), r 6.07.1; Re Young (2020) 94 ALJR 448 at 451 [11]-[12]; 376 ALR 567 at 570.

AT 9.28 AM THE MATTER WAS CONCLUDED