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RCM, In the matter of an application for leave to issue or file [2022] HCATrans 107 (16 June 2022)

Last Updated: 16 June 2022

[2022] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A11 of 2022

In the matter of -

an application by RCM for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 JUNE 2022, AT 9.15 AM

Copyright in the High Court of Australia
HIS HONOUR: By application filed on 28 April 2022, the applicant seeks leave to issue or file an application for removal of the whole of a cause into this Court under section 40 of the Judiciary Act 1903 (Cth). For the reasons that I now publish, I would dismiss the application. The order is:

1. The application for leave to issue or file is dismissed.

I publish that order.

I publish my reasons.

I direct that the reasons as published be incorporated into the transcript.

On 11 March 2022, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Gordon J directed the Registrar to refuse to issue or file, without the leave of a Justice of this Court, a proposed application by the applicant, RCM, to remove a matter into this Court under s 40 of the Judiciary Act 1903 (Cth). This is an application by RCM for that leave.

The proposed application for removal for which RCM seeks leave to issue or file concerns a cause that is described as “pending in the South Australian Adelaide Youth Court”. It is unnecessary to recount the factual background in which RCM says that, although sole custody of her child (“the child”) was awarded to her, the Department for Child Protection applied to have the child removed from her. RCM says that the child was removed from her by the Department for Child Protection on 18 May 2018.

The claim by RCM in the Youth Court of South Australia, which RCM would seek to have removed to this Court, relates to the child. It is unclear whether any or all of the relief sought in her proposed application in this Court was raised in the Youth Court but it suffices to deal with the proposed application on the basis that the relief had been so sought. Some of that relief includes the return of custody of the child to RCM from the Department for Child Protection and various other orders against the Chief Executive of the Department as well as orders against the child’s father relating to the relationship of the child with the father. The respondents to the proposed application that RCM seeks leave to issue or file are the Chief Executive of the Department for Child Protection, the child's father, and the child.

RCM says that her application raises twelve constitutional issues. The first of these issues is:

"Is the Constitution Act and all laws made by the Parliament of the Commonwealth under the Constitution, binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State? Specifically the Treaty Obligations under the Right of the Child prescribed by the Family Law Act 1975, as requested by the States?"

In very broad terms, the remaining issues concern: the alleged invalidity of South Australian laws relating to child welfare; the alleged inconsistency between South Australian Executive action and “constitutional treaty obligations”; the binding effect of various provisions in international treaties to which Australia is a party; the inconsistency between orders of State and Federal courts; the jurisdictional competency of the Youth Court; and other related issues.

The discretion to grant or refuse leave on an application for leave to issue or file made under r 6.07.3 of the High Court Rules is governed by the same criteria as those which inform the action of the Registrar under r 6.07.1, namely whether the application sought to be 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”^[1]. The antique expression “frivolous or vexatious” has been re-expressed in numerous modern ways but one simple formulation is an application that is manifestly hopeless^[2].

It is unnecessary to descend into the detail of the various constitutional issues raised by RCM. It suffices to say that the constitutional issues are confused and the submissions as expressed are, at best, very weak. Most fundamentally, and to repeat the reasons relied upon many times in this Court^[3] of the Full Court of this Court in Bienstein v Bienstein^[4]:

“Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this court’s urgent decision should the court make an order for removal. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to bypass the special leave and leave requirements of the Judiciary Act. The s 40(1) power to remove is not intended to convert this court into a court exercising a general supervisory jurisdiction over lower courts.”

Although issues of custody of a child should never be the subject of unreasonable delay, RCM has not deposed to any reason that the proceedings could not be dealt with expeditiously by the Youth Court. Nor, especially in light of the apparent weakness of the constitutional claims as expressed, has RCM established any basis for a conclusion that the issues are sufficiently important and sufficiently urgent to justify an order for removal of the proceedings into this Court, bypassing the special leave and leave requirements of the Judiciary Act. The application which is proposed to be filed is manifestly hopeless. There is no prospect that an oral hearing could assist. The application for leave to issue or file should be determined without being listed for hearing under r 13.03.1 of the High Court Rules. The application for leave to issue or file is dismissed.

Please adjourn the Court.

AT 9.16 AM THE MATTER WAS CONCLUDED

[1] Re Young (2020) 94 ALJR 448 at 451 [11]‑[12]; 376 ALR 567 at 570.
[2] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [70]‑[73].
[3] (2003) 195 ALR 225 at 234 [45].
[4] Re Young (2020) 94 ALJR 448 at 453 [26]‑[27]; 376 ALR 567 at 573. See also Henke v Commonwealth Bank of Australia [ 2008] HCATrans 116  at 2; Golding v The Queen [2015] HCATrans 199 at 7‑8. See further Luck v Principal Officer of Peninsula Health [2015] HCASL 207; Dickens v Dickens [2017] HCASL 325; In the matter of an application by Gapes for leave to issue or file [2021] HCATrans 179.