Steele (a pseudonym), In the matter of an application for leave to issue or file [2023] HCATrans 27 (15 March 2023)

Last Updated: 15 March 2023

[2023] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S161 of 2022

In the matter of -

an application by MS STEELE (A PSEUDONYM) for leave to issue or file

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 2023, AT 9.30 AM

Copyright in the High Court of Australia
HER HONOUR: On 16 December 2022 the applicant filed an application seeking leave to issue or file an application dated 25 November 2022. Pursuant to rule 6.07.3 of the High Court Rules 2004 (Cth), I refuse the application for leave to issue or file the proposed application for a constitutional or other writ dated 25 November 2022. I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 25 November 2022, the applicant sought to file an application for constitutional writs and ancillary relief (“the proposed application”) arising from judgments of the Family Court of Australia dated 8 July 2011 (“the 2011 judgment”) and 17 December 2015, the Full Court of the Family Court of Australia dated 22 February 2012, and the Federal Circuit and Family Court of Australia (Division 1) dated 21 July 2021 (“the July 2021 judgment”) and 17 November 2021 (“the November 2021 judgment”).

The proposed application arises out of protracted litigation involving the allocation of parental responsibility and other parenting orders made in respect of the applicant's son, and costs of the litigation. The child is now 16 years old. In 2015 (when the child was 8 years old), final parenting orders were made which provided, among other things, for the father to have sole parental responsibility of the child and for the child to live with the father. In the July 2021 judgment, Harper J dismissed an application by the mother for orders including orders varying the 2015 orders, following a finding that there was no sufficient change of circumstances demonstrated to the mother to warrant relitigation of the parenting orders in relation to the child. In the November 2021 judgment, Harper J ordered the mother to pay the father's costs of her unsuccessful application fixed in the amount of $25,000.

In that judgment, Harper J recorded the mother's allegation that:

“the father engaged in fraudulent behaviour in the proceedings before Fowler J which later formed the basis of the final orders made by Loughnan J for the child to live with the father. The mother claims that the father knew that the child did not have Oppositional Defiant Disorder, and used this false evidence knowingly to gain custody of the child”.

Harper J found that the allegations appeared to lie in a “tradition of unjustified accusations against the father” and recorded that they were not supported by any findings in the July 2021 judgment. Harper J also found that the mother had commenced the proceedings “for her own benefit, based on an unreasonable and erroneous interpretation of court orders” and had unreasonably refused to take a path of resolution proffered by the father.

On 29 November 2022, Jagot J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the proposed application without the leave of a Justice first had and obtained by the applicant. By a further application dated 16 December 2022, in accordance with r 6.07.3, the applicant sought leave to file the proposed application.

Principles to be applied

The discretion to grant or refuse 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”. It is implicit in the requirement that a document the subject of an application under r 6.07.3 be considered “on its face” that such an application falls to be determined on the papers^[2]. While there are no “closed categories” of what amounts to an abuse of process, that concept will include an attempt to invoke the jurisdiction of the Court on a basis that is confused or untenable^[3].

The relief sought

The principal relief sought in the proposed application is that orders made by the various courts identified above be quashed and replaced by orders in terms made in July 2008, though amended in various respects. The basis for the relief sought is said to be that the 2011 judgment was procured by the fraud of the father and an expert psychiatrist witness. The facts set out in the proposed application are not capable of making out the asserted fraud because they include no facts that, if proved, might support a conclusion that either the father or the expert witness had no honest belief in the truth of any of the evidence that they gave to the Family Court in 2011^[4]. Even if the materials did make out the asserted fraud, the application does not satisfy the strict additional requirements for setting aside a judgment procured by fraud, including proof of a “new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment”^[5]. Accordingly, the proposed claims are untenable.

Further, the original jurisdiction of this Court is not properly invoked to raise issues that could have been raised and determined in proceedings in another court which sits within the structure of courts from which an appeal lies by special leave to this Court in its appellate jurisdiction^[6].

It follows that there is also no tenable basis for any of the proposed ancillary relief.

For these reasons, I make the following order:

Leave to issue or file the proposed application for a constitutional or other writ dated 25 November 2022 be refused.

Adjourn the Court, please.

AT 9.30 AM THE MATTER WAS CONCLUDED

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

[2] Re Young (2020) 94 ALJR 448 at 451 [12]; 376 ALR 567 at 570; Re Simmonds [2020] HCATrans 34.

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

[4] Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at 501-502 [22], citing Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 578.

[5] Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 538. See also McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 544; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196 [16].

[6] Re Nichles [2022] HCATrans 95, citing Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]-[14]; 287 ALR 560 at 562-563. See also Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.13, formerly Family Law Rules 2004 (Cth), r 17.02.