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High Court of Australia Transcripts |
Last Updated: 31 May 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P21 of 2018
In the matter of -
an application by JERROD JAMES CONOMY for leave to issue or file
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 30 MAY 2018, AT 11.00 AM
Copyright in the High Court of Australia
HIS HONOUR: For reasons that I now publish, I dismiss the applicant’s ex parte application dated 19 April 2018 and the applicant’s further application made by summons dated 24 May 2018. I instruct that the reasons, as published, be incorporated into the transcript.
On 16 January 2015, the applicant was convicted before the Magistrates’ Court of Western Australia of a charge of breaching a Violence Restraining Order. He appealed against conviction to the Supreme Court of Western Australia but, on 29 May 2015, his appeal was dismissed by Martino J[1]. The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia but, on 18 February 2016, the Court of Appeal (Buss and Mazza JJA and Mitchell J) refused him leave to appeal[2].
Subsequently, the applicant applied for special leave to appeal to this Court (Matter No P20 of 2016) but, because the applicant failed to file his written case within 28 days, as was required by r 41.10.3(c) of the High Court Rules 2004 (Cth) as in force at the time, his application for special leave was, perforce of r 41.10.4.1, deemed to have been abandoned as of 7 June 2016.
By summons dated 7 April 2017, the applicant applied for an order reinstating Matter No P20 of 2016 and for an extension of time in which to comply with r 41.10.3(c), but, on 19 April 2017, Gordon J ordered that the summons be dismissed. In reasons for judgment which her Honour published that day, Gordon J concluded that it would be futile to grant the orders sought because the application for special leave would enjoy no prospect of success.
By a further summons, dated 26 April 2017, in Matter No P20 of 2016, the applicant applied again for orders inter alia reinstating Matter No P20 of 2016 and for an extension of time in which to comply with r 41.10.3(c), but, on 17 May 2017, I ordered that the application be dismissed and that, pursuant to r 6.07.2 of the Rules, the Registrar be directed to refuse to issue or file any further document tendered by the applicant for issue or filing in the proceeding without the leave of a Justice first had and obtained by the applicant. In reasons for judgment which I published that day, I explained that, in addition to several other reasons for dismissing the summons, I considered that there was not the slightest doubt as to the correctness of Martino J’s rejection of the applicant’s appeal against conviction or the Court of Appeal’s refusal of leave to appeal.
The applicant now applies in this proceeding, by ex parte application dated 19 April 2018, for leave to file a summons in Matter No P20 of 2016 that seeks:
“1. ... [the making of] any required exceptions to the rules ... and for the Judge to properly consider the supporting affidavit ... prior to drawing conclusions adverse to the applicant ...
I have read the applicant’s supporting affidavit sworn 19 April 2018. Therein, the applicant deposes that his primary purpose in making the application:
“is to seek direction as to the jurisdictions exercised in the making of certain orders in a prior decision so that I can be certain as to what is the next step I should take in the matter P20 of 2016 which has not been finally determined by a full court.”
In a sense, the applicant’s application in Matter No P20 of 2016 has been considered by a Full Court. Following my order of 17 May 2017 that the Registrar be directed to refuse to issue or file any further document tendered by the applicant for issue or filing in the proceeding without the leave of a Justice first had and obtained by the applicant, the applicant applied in Matter No P54 of 2017 for leave to issue or file a document in Matter No P20 of 2016. On 9 November 2017, Bell J dismissed that application. Subsequently, the applicant applied in Matter No P63 of 2017 for leave to appeal from Bell J’s order. But, on 23 March 2018, a Full Court constituted by Kiefel CJ and Gageler J dismissed[3] that application.
That said, however, what I apprehend the applicant to mean by his statement that “the matter P20 of 2016 ... has not been finally determined by a full court” is that his application for special leave to appeal from the orders of the Court of Appeal has not been determined by a Full Court. And what I understand the applicant to be seeking by way of directions are directions as to the steps he might take to have his application for special leave come before a Full Court. My understanding of that being so is informed in part by oral submissions made on 21 May 2018 in which the applicant added to the contents of his affidavit, in substance, that he was confused and frustrated by the many different applications that he had been required to make in his quest to have his application for special leave come before a Full Court and uncertain as to whether my order of 17 May 2017 was made in exercise of original or appellate jurisdiction, and, therefore, whether it is now open to him to appeal from that order. The applicant complained, too, that it was in his view unfair and discriminatory that, at relevant times, the Rules provided that an unrepresented applicant for special leave was required to follow a procedure different from the procedure that a represented applicant for special leave was required to follow. Consequently, I observe in passing that the object of that difference was to assist unrepresented litigants who it had been found by experience were by and large less able than represented litigants to comply with the more demanding procedural requirements that applied to the latter.
After reserving my decision and reflecting on the applicant’s affidavit and submissions, I am not persuaded that I should make the directions which are sought. If there were anything to be achieved by enabling the applicant’s application for special leave to advance towards determination by a Full Court, it would perhaps be appropriate to direct that the applicant have leave to file out of time an application for leave to appeal from the orders of Gordon J of 19 April 2017 in Matter No P20 of 2016. But in my judgment there is nothing to be achieved by enabling the application for special leave to advance to a Full Court. For the reasons which I gave on 17 May 2017 in Matter No P20 of 2016, I saw no reason to doubt the correctness of Gordon J’s reasoning or conclusion that the application for special leave would enjoy no prospect of success and thus no reason to doubt the rectitude of her Honour’s order that the applicant’s application for an order reinstating his application for special leave be dismissed. Now, having re-read the reasons for judgment of Martino J and of the Court of Appeal, the applicant’s application for special leave, proposed amended application for special leave, proposed draft notice of appeal, proposed amended draft notice of appeal, proposed written case and proposed amended written case, I remain of the clear view that there is no reason to doubt the correctness of either judgment and, therefore, that the applicant’s application for special leave to appeal from the judgment of the Court of Appeal would enjoy no prospect of success. That being so, I consider that it would be futile to facilitate its consideration by a Full Court or to enable the applicant to take any other step in Matter No P20 of 2016.
Having so concluded, it was drawn to my attention that on 24 May 2018, the applicant lodged in the Registry for filing in this matter a further summons, in which he seeks, in substance, the following orders:
“1. ... required exemptions ... in order to fully determine the applications defined in this summons despite the fact that Justice Nettle has reserved his decision ...
For the reasons already given, I am not disposed to make any of those orders either.
If the applicant is dissatisfied with my conclusions, it will be open to him to apply, in this matter, in accordance with Pt 41 of the Rules, for leave to appeal from the order which I am about to make. I order that both the ex parte application for leave to file and the application made by summons dated 24 May 2018 be dismissed.
Adjourn to 12 noon.
AT 11.00 AM THE MATTER WAS CONCLUDED
[1] Conomy v Maden [2015] WASC 178.
[2] Conomy v Western Australian Police [2016] WASCA 31.
[3] Re Conomy [2018] HCASL 74.
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2018/103.html