Plaintiff S164-2018A; Plaintiff S164-2018B; Plaintiff S164-2018C, In the matter of an application for leave to issue or file [2019] HCATrans 222 (13 November 2019)

Last Updated: 13 November 2019

[2019] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S253 of 2019

In the matter of -

an application by PLAINTIFF S164/2018A for leave to issue or file

Office of the Registry
Sydney No S254 of 2019

In the matter of -

an application by PLAINTIFF S164/2018B for leave to issue or file

Office of the Registry
Sydney No S255 of 2019

In the matter of -

an application by PLAINTIFF S164/2018C for leave to issue or file

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 2019, AT 9.40 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: On 22 August 2019, the applicant in each of these matters filed an application for leave to issue or file an application for constitutional writs. For the reasons that I now publish, I would refuse the application for leave in each matter. I direct that those reasons be incorporated into the transcript.

The order is:

1. Each application for leave is refused.

I publish that order.

The applicant in each of these three applications began the proceeding in this Court that has given rise to these applications when he applied for an order that the Minister for Home Affairs (“the Minister”) show cause why writs of prohibition and habeas corpus should not issue requiring the applicant’s release from immigration detention on the ground that ss 189 and 196(1) and (3) of the Migration Act 1958 (Cth) are constitutionally invalid. On 30 August 2018, Gageler J dismissed the applicant’s application for an order to show cause.

On 5 September 2018, the applicant filed an application for leave to appeal against this decision. On 17 April 2019, this application for leave to appeal was dismissed by Nettle and Gordon JJ on the basis that the extension of time necessary to enable the application for leave to proceed should not be granted because the decision of Gageler J was plainly correct and an appeal to this Court would enjoy no prospects of success. Their Honours also rejected the applicant’s argument that the application be heard and determined by a Court comprised of not fewer than three Justices.

The first application (Matter No S253 of 2019)

The applicant now seeks by the first of his current applications to challenge the decision of Nettle and Gordon JJ. He seeks to pursue this challenge by an application for a writ of certiorari, to quash the decision of Nettle and Gordon JJ, and a writ of mandamus requiring three Justices of this Court to hear and determine that challenge according to law. The applicant asserts that Nettle and Gordon JJ fell into jurisdictional error. Pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Bell J directed the Registrar to refuse to issue or file the latest application without the leave of a Justice first had and obtained by the applicant. Leave should be refused because the application is incompetent.

Decisions of Justices of this Court are not amenable to supervision and correction by the constitutional writs. A challenge to a decision of a Justice of this Court on the basis of an error of law may be pursued, subject to the grant of leave, by way of appeal; but the constitutional writs do not go to a Justice of this Court when exercising the jurisdiction of the Court as distinct from jurisdiction conferred on a Justice by statute as “persona designata”. So, in Re Toohey; Ex parte Gunter^[1], McHugh J held that a Justice of the Court exercising the jurisdiction of the Court under s 15 of the Judiciary Act 1903 (Cth) is not amenable to the constitutional writs.

The constitutional writs go to inferior tribunals and courts and public officials exercising administrative jurisdiction. This Court is not an inferior tribunal or court: it is a superior court whose jurisdiction extends to the final determination of its own jurisdiction. As Isaacs J observed in R v Murray and Cormie; Ex parte The Commonwealth^[2]:

“the inherent nature of prohibition or mandamus requires that the officer [to whom the writ is directed] must be someone not a member of the tribunal to which the application is made, or superior to it.”

In addition, as was held in Re Toohey; Ex parte Gunter^[3], this Court cannot commit an error that deprives it of jurisdiction because this Court and its Justices have jurisdiction to determine their own jurisdiction.

The second application (Matter No S254 of 2019)

In respect of the applicant’s appeal from the decision of Gageler J, the Minister filed on 14 September 2018 a notice of appearance to that appeal. On 19 September 2018, the Minister filed a summons challenging the competence of the appeal on the ground that leave to appeal had not been obtained. On 24 September 2018, the applicant filed a summons contending that the Minister’s unconditional appearance involved an irrevocable submission to jurisdiction. On 7 November 2018, each summons was heard and determined by Edelman J, with the applicant’s summons being dismissed and the relief sought by the Minister being granted. On 14 December 2018, the applicant filed an application for leave to appeal from the decision of Edelman J. On 17 April 2019, the application for leave was dismissed by Nettle and Gordon JJ.

The second of the applications now brought by the applicant seeks relief by constitutional writs on the ground of errors of jurisdiction to similar effect as those advanced in respect of the first application. For the same reason, this second application is incompetent and leave must be refused.

The third application (Matter No S255 of 2019)

The third of the applicant’s current applications arises because the applicant sought to challenge the decision of Edelman J of 7 November 2018 by the issue of the constitutional writs on the basis of jurisdictional error. On 17 April 2019, Nettle and Gordon JJ dismissed this challenge on the basis that it did not disclose an arguable basis for the relief which was sought. The applicant now seeks to challenge this latter decision by the issue of constitutional writs on the grounds of error of jurisdiction. For the reasons stated in relation to the other two applications, this application is incompetent. Accordingly, leave must be refused in respect of this application as well.

AT 9.40 AM THE MATTERS WERE CONCLUDED

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^[1] (1996) 70 ALJR 644 at 645.

^[2] [1916] HCA 58; (1916) 22 CLR 437 at 453. See also, Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial Sugar Refining Co Ltd [1916] HCA 55; (1916) 22 CLR 103 at 117; Re Brennan; Ex parte Muldowney [1993] HCA 53; (1993) 67 ALJR 837 at 839; [1993] HCA 53; 116 ALR 619 at 622; Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603‑604, 608, 636, 647.

^[3] (1996) 70 ALJR 644 at 645.