Hastwell, In the matter of an application for leave to issue or file [2021] HCATrans 173 (28 October 2021)

Last Updated: 1 November 2021

[2021] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S131 of 2021

In the matter of -

an application by HAYDYN G HASTWELL for leave to issue or file

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR: I refuse the application for leave to issue or file the proposed application for a constitutional or other writ. I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 23 August 2021, Mr Haydyn Hastwell lodged with the Registry for filing a document identified as an application for a constitutional or other writ naming this Court as the first defendant and the NSW Legal Services Commissioner, Mr John McKenzie, as the second defendant.

Mr Hastwell’s attempt to file the document evidently arose out of his dissatisfaction with the dismissal on 12 August 2021 by Keane and Edelman JJ in Hastwell v Legal Services Commissioner, Mr John McKenzie [2021] HCASL 139 of his application for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales in Hastwell v Legal Services Commissioner [2021] NSWCA 20 dismissing his application for leave to appeal from the decision of Campbell J in the Common Law Division of the Supreme Court of New South Wales in Hastwell v Legal Services Commissioner [2020] NSWSC 1008.

On 24 August 2021, Steward J made a direction under r 6.07.2 of the High Court Rules 2004 (Cth) by which he directed the Registrar to refuse to issue or file the document without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

Pursuant to r 6.07.3, by application and accompanying affidavit both filed on 10 September 2021, Mr Hastwell seeks that leave. These are my reasons for refusing it.

Leave to issue or file the document will ordinarily be refused on an application under r 6.07.3 where the document sought to be issued or filed appears “on its face” to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court: Re Young (2020) 94 ALJR 448 at 451 [11]; 376 ALR 567 at 570. Implicit in the requirement that a document the subject of the application be considered “on its face” is that the application falls to be determined without an oral hearing: Re Young (2020) 94 ALJR 448 at 451 [12]; 376 ALR 567 at 570, citing Re Simmonds [2020] HCATrans 034.

By filing the document identified as an application for a constitutional or other writ, as expounded in the affidavit accompanying the application under r 6.07.3, Mr Hastwell would seek a writ of certiorari or of mandamus directed to this Court, either quashing the decision of Keane and Edelman JJ dismissing his application for special leave to appeal or compelling this Court to grant the application and hear his appeal. He would also seek a writ of certiorari and of mandamus directed to the Court of Appeal, quashing its decision to dismiss his application for leave to appeal from the decision of Campbell J or directing that it grant his application for leave to appeal. He would also seek declarations concerning the reach of the Supreme Court’s supervisory jurisdiction and the correct construction of aspects of the Legal Profession Uniform Law (NSW), as applied by the Legal Profession Uniform Law Application Act 2014 (NSW); those issues were addressed in the decisions of Campbell J and of the Court of Appeal.

To the extent the document, if filed, would amount to an application for a writ of certiorari or of mandamus directed to this Court, the relief sought would fall outside the jurisdiction of the Court. This Court has no jurisdiction, under s 75(v) of the Constitution or otherwise, to direct a writ of certiorari or of mandamus to itself: Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603-604, 610, 636; Re Carmody; Ex parte Glennan [2003] HCA 32; (2003) 77 ALJR 1202 at 1203 [6]; [2003] HCA 32; 198 ALR 259 at 260.

To the extent the document, if filed, would amount to an application for writs of certiorari and of mandamus directed to the Court of Appeal, the relief sought would similarly fall outside the jurisdiction of the Court. This Court has no jurisdiction under s 75(v) of the Constitution to direct a writ of certiorari or of mandamus to the Supreme Court of a State: R v Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452-453; Bird v NSW Council for Civil Liberties Inc (1994) 68 ALJR 497 at 498. No basis appears for considering that the jurisdiction conferred on this Court by s 33(1) of the Judiciary Act 1903 (Cth) read with s 15C of the Acts Interpretation Act 1901 (Cth) is invoked.

To the extent the document, if filed, would seek declarations, the subject‑matter of those declarations would traverse issues raised and disposed of before Campbell J and the Court of Appeal. It is an abuse of process to attempt to relitigate issues already disposed of by earlier proceedings: Walton v Gardiner (1993) 177 CLR 378 at 393; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 193 [33]. Moreover, the original jurisdiction of this Court is not properly invoked to raise issues that have been, or could and should have been, raised in proceedings in another other court which sits within the structure of courts from which an appeal lies by special leave to this Court in its appellate jurisdiction: Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]-[14]; 297 ALR 560 at 562-563.

The substantive relief that would be sought by Mr Hastwell if leave to file the document were granted accordingly either falls outside the jurisdiction of this Court or constitutes an abuse of its process. The leave he seeks must therefore be refused.

AT 9.30 AM THE MATTER WAS CONCLUDED