Pridgeon, In the matter of an application for leave to issue or file [2021] HCATrans 60 (9 April 2021)

Last Updated: 12 April 2021

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[2021] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S29 of 2021

In the matter of -

an application by WILLIAM RUSSELL PRIDGEON for leave to issue or file

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 APRIL 2021, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR: On 5 March 2021, the plaintiff filed an application seeking leave to issue or file an application for constitutional writs or alternative relief and declarations. For the reasons that I now publish, the order of the Court is: application filed 5 March 2021 for leave to file an application for constitutional writs and alternative and other relief is refused. I publish that order and my reasons. I direct that the reasons be incorporated into the transcript.

On 1 March 2021, the applicant sought to file an application for constitutional writs, or alternative relief, and declarations (“the proposed application”). On 3 March 2021, Edelman J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file that document without the leave of a Justice first had and obtained by the applicant. By an application filed on 5 March 2021, the applicant sought leave to have issued or to file the proposed application. Such an application may be made in accordance with r 6.07.3.

The discretion to decide whether to grant the leave sought is to be exercised by reference to the criteria set out in r 6.07.1^[1], namely whether the proposed application “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”. The application may be determined on the papers^[2]. In short, the concept of abuse of process applies to an attempt to invoke the jurisdiction of the Court on a basis that is confused or untenable^[3].

The application and supporting affidavits indicate that the applicant has been committed to stand trial in the District Court of Queensland, where he is charged with offences of conspiring to defeat justice under s 42(1) of the Crimes Act 1914 (Cth), and harbouring a stolen child under s 363 of the Criminal Code Act 1899 (Qld).

The scope of the relief sought by the applicant is not entirely clear, but the first claim is for a writ of certiorari quashing the decision of a magistrate, the proposed second defendant (“the magistrate”), to commit the applicant for trial. There are two reasons why this claim is doomed to fail. First, the applicant’s evidence is that the magistrate is a Queensland State officer who exercised federal jurisdiction. A State magistrate is not an officer of the Commonwealth within the meaning of s 75(v) of the Constitution^[4]. Secondly, the High Court does not have original jurisdiction to grant certiorari except where its jurisdiction is otherwise properly invoked^[5]. The Court’s jurisdiction is not otherwise properly invoked in relation to the decision to commit the applicant for trial.

Next, the applicant seeks a writ of prohibition against the Commonwealth Director of Public Prosecutions (“the CDPP”), the proposed first defendant, prohibiting her from pursuing the criminal charges against the plaintiff in the District Court until a readable brief in paper form has been submitted. The basis for this claim is the applicant’s complaint that he cannot get a fair trial because he cannot understand the prosecution brief or properly read or access it in the form that it has been supplied. Prohibition lies only for actual or threatened excesses of power^[6]. On the face of the application and supporting affidavits, the applicant does not allege an actual or threatened excess of power on the part of the CDPP in connection with the form or content of the prosecution brief. The applicant claims that the brief is “completely unreadable” and that he cannot make sense of it; and that he has been refused a paper brief (whether on an application to the CDPP or to the District Court is unclear). Without more, these facts do not disclose an alleged excess or threatened excess of power on the part of the CDPP. For example, there is no allegation that the CDPP has breached or threatened to breach a duty to do anything concerning the form of the brief. The applicant’s complaints about the brief raise the question of what is required to provide a trial that will not be unfair, which is an issue for the trial court and not normally for a court exercising supervisory jurisdiction^[7].

The other relief sought comprises: an order that the applicant has no case to answer and an order dismissing the charges against him; an order permanently staying the charges against him; a declaration stating the facts needed to be proved to sustain a charge under s 42(1) of the Crimes Act; a declaration stating whether the facts alleged against the applicant, if proved, are capable of leading to a conviction under s 42(1); and a declaration stating that the Family Court of Australia has exclusive jurisdiction in relation to breaches of orders of that Court, and that a breach of Family Court orders should have been dealt with in the Family Court. None of these claims for relief invokes the Court’s original or appellate jurisdiction.

It follows that the proposed application appears on its face to fall outside this Court’s jurisdiction and there is no good reason for granting the applicant leave to file the application. Accordingly, leave will be refused.

For these reasons, there will be the following order: application filed 5 March 2021 for leave to file an application for constitutional writs and alternative and other relief is refused.

AT 9.30 AM THE MATTER WAS CONCLUDED

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^[1] Re Young (2020) 94 ALJR 448 at 451 [11] per Gageler J; 376 ALR 567 at 570.

^[2] Re Young (2020) 94 ALJR 448 at 451 [12] per Gageler J; 376 ALR 567 at 570.

^[3] Re Young (2020) 94 ALJR 448 at 451 [13] per Gageler J; 376 ALR 567 at 570.

^[4] R v Murray & Comie [1916] HCA 58; (1916) 22 CLR 437 at 452-453 per Isaacs J, 464 per Higgins J, 471 per Gavan Duffy and Rich JJ; Sankey v Williams (1977) 1 NSWLR 333 at 362-363 per Hutley JA; Coward v Allen [1984] FCA 53; (1984) 52 ALR 320 at 324-325 per Northrop J; Klewer v Dutch [2000] FCA 509; (2000) 99 FCR 217 at 229 [49] per Hill J.

^[5] R v Bowen; Ex parte Federated Clerks Union of Australia [1984] HCA 30; (1984) 154 CLR 207 at 211; Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 393-394 [19] per Gleeson CJ, 440-441 [176] per Kirby J; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 507 [80]- [81] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

^[6] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 91 [16] per Gaudron and Gummow JJ.

^[7] cf Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 26 per Gibbs ACJ; Commissioner of Corrective Services v Liristis [2018] NSWCA 143; (2018) 98 NSWLR 113 at 131‑133, [79], [81], 135 [87] per Basten JA (with Beazley P agreeing at 116 [8]).