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The background was Ms Peers' attempt to seek special leave to appeal to the High Court from a judgment of a single judge of the Supreme Court of Victoria in Peers v Fletcher [2024] VSC 427. The proposed writ application sought prohibition, mandamus and certiorari concerning the Deputy Registrar's refusal to accept that special leave application for filing ([3]).

The application for leave followed a procedural direction made by Beech-Jones J on 26 August 2024 under r 6.07.2 of the High Court Rules 2004 (Cth). That direction required Ms Peers to obtain a Justice's leave before the proposed writ application could be filed or issued ([2]). Ms Peers filed her leave application on 28 August 2024, supported by an affidavit sworn that day ([1]).

The stated reason for the Registry's rejection was that “all avenues of appeal in lower courts have not been exhausted before applying for special leave to appeal” ([5]). Gleeson J stated that the Deputy Registrar had no power to refuse to accept the special leave application for filing: a person may seek special leave to appeal to the High Court from a decision of any State Supreme Court ([4]). The judgment also said the evidence raised an arguable case that the application had been lodged in accordance with r 1.07, but was not filed because the Registry rejected it ([5]).

That finding did not resolve whether the proposed writs should issue. Gleeson J assessed each form of relief against the alleged facts. The application did not show an arguable basis for prohibition or mandamus, and without another basis for original jurisdiction, certiorari could not be granted ([7]). The Court refused leave and dismissed the application without listing it for a hearing under r 13.03.1 ([14]).

The disposition was about the proposed writ proceeding, not the merits of Ms Peers' underlying special leave application or the appeal in the Victorian proceeding. The judgment did not decide whether special leave should be granted.

Why the court decided this way

The governing screening rule was r 6.07.1. Gleeson J said the discretion to refuse leave is exercised by asking whether the proposed application appears “on its face” to be an abuse of process, frivolous or vexatious, or outside the Court's jurisdiction ([6]). As an application under r 6.07.3 must be considered on its face, the judge explained that it is decided on the papers ([6]). The Court was therefore assessing the proposed application and supporting material, rather than conducting a hearing on the underlying special leave dispute.

The analysis turned on the nature and function of the particular writs.

Prohibition is a restraining order. It may prevent a decision-maker from proceeding until a condition is satisfied, or stop someone assuming a jurisdiction not conferred on them ([8]). But the proposed order did not, in Gleeson J's assessment, purport to prohibit future conduct. It was directed to the fact that the Deputy Registrar had already rejected the special leave application's lodgement ([9]). The application alleged no facts suggesting the Deputy Registrar intended or had the capacity to do anything further in relation to that rejected lodgement ([10]). The judge concluded that there was no arguable basis for prohibition ([11]). The cited principle that prohibition cannot be granted after the impugned order has exhausted its possible operation reinforced the problem with seeking a restraining order over a completed act ([8]).

Mandamus presented a different question. It is a judicial command requiring a defendant to perform a public duty that, in the superior court's opinion, the defendant wrongly refused to perform ([12]). Ms Peers framed the proposed order as requiring the Registrar to file the matter or refer it to the Justices ([12]). The difficulty was that the proposed application did not identify a duty that remained to be performed by the Deputy Registrar. The facts alleged did not show that the Deputy Registrar could accept the rejected application unless Ms Peers re-lodged it ([13]). The Court therefore found no arguable basis for mandamus ([13]).

The certiorari claim could not stand alone in the circumstances identified. Gleeson J stated that the Court does not possess jurisdiction to grant certiorari where it does not otherwise possess original jurisdiction ([7]). Because there was no arguable basis for either prohibition or mandamus, the proposed application did not provide the necessary basis to reach certiorari ([7]).

This reasoning separates two propositions that should not be conflated. First, the judge considered the Registry's reason for rejecting the special leave application beyond the Deputy Registrar's power ([4]). Secondly, the form and factual basis of the writ application did not support the particular relief sought ([9]-[13]). Recognition of the first proposition did not automatically establish the second.

Before and after state of the law

The judgment presents itself as an application of existing procedural and remedial principles, not as a change in the law. For screening leave applications, it applied the criteria in r 6.07.1 and relied on Re Young for the “on its face” assessment and the treatment of the application on the papers ([6]). It also adopted the description of abuse of process as capturing attempts to invoke the Court's jurisdiction on confused or untenable bases ([6]).

For prohibition, the judgment applied the established character of the writ as negative or restraining relief and the limitation where the impugned order has exhausted its possible operation ([8]). For mandamus, it used the established formulation of a judicial command to perform a public duty wrongly refused ([12]). For certiorari, it applied the stated limitation that the writ is not available where the Court otherwise lacks original jurisdiction ([7]).

The judgment's additional point concerns the filing of a special leave application. It states that a person is entitled to seek special leave from a decision of a State Supreme Court, citing Constitution s 73(ii), Chief Commissioner of Police v Crupi [2024] HCA 34 at [9], and Dimitrov v Supreme Court (Vic) (2017) 263 CLR 130 at 143 [27] ([3]-[4]). It also refers to rr 1.07 and 1.10.1: an application is filed if lodged in accordance with r 1.07 and accepted in the Registry ([5]). On the affidavit evidence, the judge considered there was an arguable case that the application had been properly lodged but rejected ([5]).

No “after” state of the law can be established from this judgment alone. The text does not identify a later doctrinal change, nor does it describe a subsequent court's treatment of its reasoning. It determines the leave application before Gleeson J and cites existing sources for the principles applied.

Key passages with plain-English translation

At [4], Gleeson J states: “The Deputy Registrar did not have power to refuse to accept the special leave application for filing.” In plain English, the reason given by the Registry about exhausting lower-court appeal avenues was not a basis on which the Deputy Registrar could refuse to accept the application. That statement concerns acceptance for filing, not whether special leave would ultimately be granted.

At [5], the judgment says the evidence “raises an arguable case” that Ms Peers lodged the special leave application in accordance with r 1.07 and that it was not filed because the Registry rejected it. “Arguable” is a threshold description, not a final factual determination after a contested hearing. It records that the evidence could support that position.

At [6], the Court says the leave application is determined “on the papers”. In plain English, the judge could decide whether the proposed writ proceeding passed the rule-based threshold by reviewing the filed documents, without listing the matter for an oral hearing.

At [10], the judge notes the absence of alleged facts showing that the Deputy Registrar intended or could do anything further in relation to the rejected application. That mattered because prohibition is directed to restraining conduct. A claim directed only to a completed decision, with no alleged continuing or prospective conduct, did not establish an arguable basis for that remedy.

At [13], the judge says the proposed application identified no “duty that remains to be performed”. In plain English, mandamus requires an outstanding public duty that the respondent can still be ordered to carry out. The application did not show that the Deputy Registrar could now accept the rejected lodgement without a fresh lodgement.

At [14], the Court records that Ms Peers “can re-lodge the application if she wishes to do so.” This explains the practical context noted by the judge. It is not a ruling on whether any later application would satisfy filing requirements, nor on its prospects for special leave.

What fact patterns trigger this precedent

The judgment is most directly relevant to a procedural situation where a litigant seeks leave to issue or file an original writ application after a direction under r 6.07.2, and where the proposed application is assessed under r 6.07.1. The key question is whether the proposed proceeding, read on its face and on the papers, discloses an arguable basis for the particular remedy sought ([2], [6]-[7]).

For prohibition, the fact pattern that mattered here was a claim directed to a completed refusal, with no alleged ongoing conduct, intention to act again, or capacity for further action concerning that rejected lodgement ([9]-[11]). The judgment indicates that a restraining remedy cannot be treated simply as a means of declaring that a past decision was wrong. The claimed order must be directed to conduct that can still be restrained, in the terms considered by the Court at [8]-[10].

For mandamus, the relevant features were the absence of an identified outstanding duty and the absence of facts showing that the Deputy Registrar could perform the requested act in relation to the existing lodgement ([12]-[13]). The focus is not only whether an earlier refusal was said to be wrong. The proposed application must identify a public duty that remains to be performed by the respondent.

For certiorari, the judgment is relevant where a party seeks that writ alongside other relief but the proposed application does not establish another basis for the High Court's original jurisdiction. Gleeson J treated the certiorari claim as dependent on the existence of an arguable basis for prohibition or mandamus in the circumstances of this application ([7]).

The decision also concerns the distinction between refusal to accept a document for filing and a decision about the merits of the proceeding the document seeks to commence. The judgment considered the Deputy Registrar lacked power to refuse acceptance on the stated ground, while separately finding that the writ application's pleaded remedial basis was insufficient ([4]-[5], [11], [13]). Its reasoning should not be expanded beyond those procedural circumstances without considering the relevant rules and facts in another matter.

How later courts have treated it

The supplied judgment contains no account of any later judicial treatment of [2024] HCASJ 36. It was delivered on 20 September 2024, and the text provided does not cite a later decision applying, distinguishing, approving or criticising its reasoning. Accordingly, later treatment cannot be established from this source.

The authorities cited in the judgment are earlier sources, not later treatment of this decision. These include Re Young on the screening criteria and on-the-face assessment ([6]); cases on prohibition and exhaustion of an order's possible operation ([8]); and Re Jarman; Ex parte Cook (No 1) on mandamus ([12]). Those citations show the authorities Gleeson J relied on for the principles in the judgment, but they do not establish how subsequent courts have treated this judgment.

For research purposes, the supported proposition is therefore limited: Gleeson J applied the cited principles to the facts of Ms Peers' proposed writ application. The provided text supplies no basis for describing this decision as followed, distinguished or otherwise treated by later courts.

Still-open questions

The judgment does not decide the merits of Ms Peers' special leave application. It says the Deputy Registrar had no power to refuse to accept it for filing on the stated basis, and that the evidence raised an arguable case of compliant lodgement and Registry rejection ([4]-[5]). It does not determine whether special leave should be granted, whether the underlying appeal would succeed, or what would occur if an application were re-lodged.

It also does not decide a broader question about every Registry refusal or every form of relief available after a filing dispute. Its analysis concerns the particular relief and factual allegations in the proposed application. The ruling on prohibition turned on the absence of facts supporting further action by the Deputy Registrar ([10]); the mandamus ruling turned on the absence of an identified duty still capable of performance ([13]).

The judgment refers to the requirements in rr 1.07 and 1.10.1, but the provided text does not reproduce the full rule wording or determine every issue that might arise in another filing dispute. It records an “arguable case” on lodgement rather than resolving every contested factual or procedural question ([5]).

Finally, no later judicial consideration is reported in the source. Whether subsequent courts have applied or qualified this decision remains unaddressed by the judgment supplied here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.