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The procedural background was that, on 8 November 2024, Edelman J directed the Registrar under r 6.07.2 of the High Court Rules 2004 (Cth) not to issue or file the writ unless a Justice first granted leave ([1]). The applicants then made an application under r 6.07.3, supported by an affidavit affirmed by both applicants and dated 29 November 2024 ([2]). Gleeson J decided that leave should be refused without listing the application for a hearing ([3]).

The proposed writ concerned a property in New South Wales. The judgment records that the Jerrinja Local Aboriginal Land Council was the registered owner. Ms Connolly had previously occupied the property under the defendant's internal housing-allocation policy, which was based on family succession of tenancy. Mr Connolly, her brother, affirmed that a District Court judge had recognised him as a “traditional native title owner” of the property ([5]). The judgment reports these as features of the proposed matter; it does not determine the truth or legal effect of the asserted recognition.

The relevant tenancy history was set out in paragraph [6]. On 12 December 2019, the New South Wales Civil and Administrative Tribunal (NCAT) declared that a Residential Tenancy Agreement existed between Ms Connolly and the Land Council. On 26 September 2023, NCAT ordered Ms Connolly to pay rent arrears and continue paying rent in accordance with that agreement. The Land Council asserted that she did not comply, served a Notice of Termination on 23 October 2023, and applied to NCAT on 6 December 2023 for termination of the agreement and possession. On 12 August 2024, NCAT made orders to the effect sought after being satisfied that Ms Connolly had breached the agreement ([6]).

The proposed writ sought three forms of relief as described by the judge: recognition that the applicants were “Native Owners Blood linked” to the property; compensation for their mother being removed from it; and an order that the Land Council “Cease & Desist” from taking action “upon [the applicants'] Country, Lands and Family home” ([7]). The applicants said the matter belonged in the High Court because NCAT had indicated it would not, or could not, address it, and because it concerned Aboriginal property rights and equality before the law ([7]).

Gleeson J did not adjudicate the underlying tenancy history, ownership, the asserted family connection, or the merits of the NCAT orders. The decision addressed the narrower procedural question: whether the proposed writ should be permitted to issue or be filed in the High Court.

Why the court decided this way

The governing screening rule was r 6.07.1 of the High Court Rules 2004 (Cth). The judgment states that leave is assessed by asking whether the proposed application appears on its face to be an abuse of the Court's process, frivolous or vexatious, or outside the Court's jurisdiction ([4]). The court assumed the facts stated in the proposed application were correct. It also explained that “on its face” means an application under r 6.07.3 is determined on the papers, without an oral hearing ([4]).

Gleeson J relied on Re Young for the stated criteria and for the explanation of abuse of process, and cited Re Simmonds in connection with determination on the papers ([4] and footnotes [2]–[4]). The judgment describes abuse of process as having no “closed categories”, while identifying a relevant form as an attempt to invoke the Court's jurisdiction on a confused or untenable basis ([4]). This description was applied to the proposed proceeding, not used to make a finding about the applicants' intentions.

The central question was whether the proposed claims engaged the High Court's original jurisdiction. The applicants' reasons included NCAT's asserted inability to deal with the matter and the characterisation of the dispute as concerning Aboriginal property rights and equality before the law ([7]). Gleeson J concluded that neither the issues raised nor the relief sought engaged that jurisdiction ([8]).

The judgment addressed two constitutional jurisdictional routes. First, the proposed defendant was a statutory corporation established under the Aboriginal Land Rights Act 1983 (NSW). The judge held that it was not an officer of the Commonwealth for the purposes of s 75(iii) or s 75(v) of the Constitution ([8]). Second, the application did not otherwise raise a matter arising under the Constitution or involving its interpretation ([8]). The judgment therefore did not treat the applicants' references to Aboriginal property rights and equality as, without more, sufficient to invoke the High Court's original jurisdiction.

The jurisdictional conclusion determined the leave application. Paragraph [9] states that the Court's original jurisdiction did not extend to granting the relief sought. The proposed application therefore appeared on its face to be an abuse of process. The operative order in paragraph [10] refused leave to issue or file the writ. The decision was a refusal of permission to commence the proposed High Court proceeding in the form presented; the judgment does not purport to decide the underlying dispute or determine any separate avenue that may exist elsewhere.

Before and after state of the law

The judgment does not set out a comprehensive account of the law before this decision. It identifies the relevant procedural framework in r 6.07.1 and refers to earlier authorities, principally Re Young (2020) 94 ALJR 448; 376 ALR 567, and Re Simmonds [2020] HCA Trans 34 ([4]). On the text provided, the propositions attributed to those authorities are limited to the points for which they are cited: the criteria governing leave, the paper-based character of the assessment, and the description of abuse of process.

The judgment's contribution is its application of that screening framework to this proposed writ. It explains that the court assumes the proposed application's stated facts to be correct, but that assumption does not itself establish jurisdiction ([4]). The court separately asks whether the matter falls within its original jurisdiction. Here, the answer was no, because the named defendant was a New South Wales statutory corporation rather than a Commonwealth officer, and no other constitutional matter was identified ([8]).

After the decision, the order in this particular proceeding was that leave was refused ([10]). The judgment does not purport to alter the text of the High Court Rules or announce a new general test beyond the principles it states in paragraph [4]. Nor does it decide whether the asserted matters could be raised in another forum. A careful account of the “before and after” position is therefore narrow: the judgment applied existing procedural criteria to the jurisdictional features of this proposed writ, and refused leave on that basis.

The judgment also distinguishes, by its reasoning, between the subject matter's importance to the applicants and the constitutional basis needed to invoke the High Court's original jurisdiction. It records claims concerning Aboriginal connection, family housing and equality, but concludes that the proposed relief did not engage that jurisdiction ([7]–[9]). It does not say that those interests are unimportant; it says that, as framed in the proposed application, they did not bring the matter within the High Court's original jurisdiction.

Key passages with plain-English translation

Paragraph [4]: “The facts stated in the proposed application are assumed to be correct.”

Plain-English translation: For the leave-screening exercise, the judge did not resolve contested facts by conducting a trial. The proposed facts were taken as stated, but that did not answer the separate legal question of whether the High Court could hear the proposed matter.

Paragraph [4]: An application under r 6.07.3 falls to be “determined on the papers”, without an oral hearing.

Plain-English translation: The rule's “on its face” assessment can be made from the written material. The judgment treats an oral hearing as unnecessary for this leave decision.

Paragraph [4]: Abuse of process includes attempts to invoke the Court's jurisdiction on “bases that are confused or untenable”.

Plain-English translation: The categories are not exhaustive, but a proposed proceeding may be abusive for this purpose if its stated basis cannot support invoking the Court's jurisdiction. The passage describes the legal concept; it does not establish that every unsuccessful or inartfully expressed claim is an abuse.

Paragraph [8]: “Neither the issues raised in the proposed application, nor the grounds of relief sought, engage the original jurisdiction of the Court.”

Plain-English translation: The judge found that the claims and remedies in this writ did not fit within the High Court's original jurisdiction. That finding was decisive for the leave application.

Paragraph [8]: The Land Council was not an officer of the Commonwealth for s 75(iii) or (v), and no other constitutional matter was raised.

Plain-English translation: The fact that the defendant was a statutory corporation did not make it a Commonwealth officer. The applicants' other stated grounds also did not establish a constitutional matter within the jurisdictional basis considered by the judge.

Paragraphs [9]–[10]: The proposed writ appeared on its face to be an abuse of process; leave was refused.

Plain-English translation: Because the Court could not grant the relief sought through its original jurisdiction, the proposed writ could not proceed in that Court under this leave application.

What fact patterns trigger this precedent

The judgment is most directly relevant to the procedural situation it addresses: a party has had a direction made under r 6.07.2 requiring leave before a proposed document can be issued or filed, and then applies under r 6.07.3 for that leave. The decision explains that the application is assessed on its face and on the assumption that the proposed facts are correct ([1]–[4]).

Its application is particularly pertinent where the proposed proceeding seeks relief from the High Court but the named respondent and the stated issues do not appear to engage the Court's original jurisdiction. In this case, the proposed defendant was a New South Wales statutory corporation, and the proposed application did not raise another constitutional matter ([8]). The subject matter arose from a residential tenancy and asserted property connections, but those descriptions did not, in the judge's analysis, establish original jurisdiction ([5]–[9]).

The decision also applies where a proposed applicant relies on another body's asserted inability to address the dispute. The applicants said NCAT had indicated that the matter would not, or could not, be addressed within its jurisdiction ([7]). The judge nevertheless assessed the High Court's own jurisdiction and concluded that it was not engaged ([8]–[9]). The judgment does not establish that an administrative tribunal's jurisdictional position is irrelevant in every case; it shows that the assertion did not establish High Court original jurisdiction on the proposed writ's stated grounds.

The precedent should be read narrowly. The judgment does not determine what counts as a “traditional native title owner”, whether the Land Council's housing allocation policy was lawful, whether the tenancy orders were correct, or what other forum might have jurisdiction. It does not decide the substantive legal merits of the applicants' claims. Its point is procedural and jurisdictional: the particular proposed writ did not fall within the High Court's original jurisdiction, so leave was refused.

How later courts have treated it

The supplied judgment contains no later judicial decisions discussing or applying In the matter of an application by Frank James Connolly & Anor for leave to issue or file [2025] HCASJ 2. Because the decision is dated 24 January 2025 and the source text provides no subsequent cases, later treatment cannot be established from this material.

The authorities identified in the judgment are earlier decisions, not later treatment of this case. Gleeson J cited Re Young (2020) for the r 6.07 leave criteria, the “on its face” procedure, and the description of abuse of process. The judge also cited Re Simmonds [2020] HCA Trans 34 in connection with deciding an application on the papers ([4], footnotes [2]–[4]). Those citations show the earlier authorities on which this judgment drew; they do not reveal how later courts have treated the 2025 decision.

Accordingly, the judgment supports an account of its own reasoning and cited foundations, but not a claim about its subsequent acceptance, limitation, distinction or development by later courts.

Still-open questions

The judgment leaves the merits of the underlying property and tenancy dispute unresolved. It does not determine the legal status of the asserted traditional or native title connection, the applicants' claimed family relationship to the property, or the meaning and effect of the Land Council's internal housing-allocation policy. Those matters appear in the factual background, but the decision rests on the High Court's jurisdiction and the leave-screening rule ([5]–[9]).

It also does not assess the correctness of NCAT's orders. The judgment records the tribunal proceedings and their outcomes, including the August 2024 orders, but the question before Gleeson J was whether the proposed writ could be issued or filed in the High Court ([6], [10]). The decision therefore should not be read as an appellate review of NCAT or as an endorsement of its findings.

The judgment does not identify an alternative forum or decide whether any other proceeding could be brought. It does not say what procedures, if any, might be available to address the applicants' concerns. The only conclusion stated is that the proposed relief was outside the High Court's original jurisdiction and leave to issue or file this writ was refused ([8]–[10]).

A further limit is that the judgment does not explain what NCAT had said about its jurisdiction beyond recording the applicants' assertion ([7]). It does not determine whether that assertion accurately described NCAT's position, nor whether a different framing of the dispute would produce a different jurisdictional analysis. Any broader conclusion would go beyond the reasons provided.

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.