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The relief sought was a writ or injunction requiring the defendant to do all things necessary to have two complaints resolved without delay. The complaints were identified as UR/CAT/24/AUS/13 and UR/CCPR/24/AUS/22 ([5]). The first alleged contraventions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The second alleged contraventions of the Optional Protocol to the International Covenant on Civil and Political Rights ([8]).

The procedural route was governed by rr 6.07.2 and 6.07.3 of the High Court Rules 2004 (Cth). On 28 February 2025, Gordon J directed the Registrar to refuse to issue or file the proposed application unless a Justice first granted leave ([1]). Kant applied for leave on 3 March 2025. His application was supported by an affidavit affirmed that day, which annexed two affidavits affirmed on 11 December 2024 ([2]).

Gleeson J decided the application without listing it for a hearing. The order, made on 19 March 2025, refused leave to issue or file the proposed writ application ([3], [11]). The decision concerned whether the proposed document could proceed through the filing process. It did not determine the underlying complaints before the United Nations body.

Why the court decided this way

The Court began with the threshold in r 6.07.1. Leave could be refused if the proposed application appeared on its face to be an abuse of process, frivolous or vexatious, or outside the Court’s jurisdiction ([4]). Gleeson J treated the phrase “on its face” as requiring a determination based on the proposed document and its supporting material, without an oral hearing. The application therefore proceeded on the papers ([4]).

The Court described abuse of process as covering attempts to invoke the Court’s jurisdiction on bases that are confused or untenable. It noted that there are no “closed categories” of abuse of process ([4]). The inquiry was directed to the proposed application and the basis it disclosed for the relief. It was not a general assessment of the applicant or the merits of the two complaints themselves.

Kant identified several sources as the basis for the Court’s jurisdiction: s 33 of the Judiciary Act 1903 (Cth), s 75 of the Constitution, cl 29 of the Magna Carta 1297 and s 12B of the Privacy Act 1988 (Cth) ([6]). Gleeson J set out the relevant features of those provisions, including the writ-making power referred to in s 33(1)(e), the original jurisdiction concerning matters arising under a treaty in s 75(i), and the connection made by s 12B(2) to the International Covenant on Civil and Political Rights ([7]).

The central problem identified by the Court was not simply that Kant cited several legal sources. It was that the proposed relief depended on a duty requiring the defendant to resolve the complaints without delay. Kant asserted that the duty arose under Art 22 of the Convention and the Optional Protocol ([9]). Gleeson J concluded that neither instrument imposed that duty on the defendant ([10]). The judgment also records that Kant had not identified another basis for finding the asserted duty ([10]).

That conclusion connected the legal analysis to the requested remedy. The writ or injunction was directed to compelling a particular result, namely resolution of the complaints without delay. On the Court’s reading, the proposed application did not establish an arguable legal basis for requiring the defendant to achieve that result. Gleeson J therefore described the proposed invocation of the Court’s jurisdiction as “manifestly untenable” and concluded that filing the document would be an abuse of process ([10]).

The order was limited to the leave application. The Court refused permission to issue or file the proposed application ([11]). The judgment does not state that the complaints themselves were invalid, nor does it decide what outcome they should receive under the international complaint processes.

Before and after state of the law

The judgment applies the existing procedural framework in r 6.07 of the High Court Rules 2004 (Cth). It does not purport to establish a new general test for leave or to amend the rule. Its explanation is that a proposed application under r 6.07.3 is assessed “on its face”, on the papers, and may be rejected where it appears to fall within one of the r 6.07.1 grounds ([4]).

Gleeson J cited Re Young for the criteria concerning abuse of process, frivolousness or vexatiousness, jurisdiction, paper determination, and the description of abuse as involving confused or untenable bases for invoking the Court’s jurisdiction ([4] and footnotes 2–5). Re Simmonds was also cited in connection with determination on the papers ([4], footnote 3). The judgment uses those authorities as sources for the procedural principles; it does not set out a comprehensive history of them.

The case’s application of those principles is fact-specific. The asserted duty was that the defendant must resolve the two identified complaints without delay. The Court concluded that the named treaty provisions did not impose that duty and that no other source for it had been identified ([8]–[10]). On that basis, the proposed application lacked an arguable foundation for its requested relief.

The decision should therefore be read narrowly. It does not state that the High Court can never hear a matter involving a treaty, that no writ could ever issue in relation to an international complaint, or that the cited constitutional and statutory provisions can have no relevance in another case. The conclusion was that this proposed application, as presented, relied on a duty the Court found was not imposed by the instruments invoked, with no alternative basis identified ([6]–[10]).

Nor does the judgment describe a change in the law after its decision. It is a single-Justice decision applying the stated procedural rule and cited authorities to the proposed application before the Court. Any broader account of the law before or after the judgment would require sources beyond this judgment.

Key passages with plain-English translation

At [4], the Court says that an application under r 6.07.3 is considered “on its face” and determined “on the papers”, without an oral hearing. In plain English, the judge assessed the proposed application and supporting materials as lodged, rather than hearing oral argument.

Also at [4], Gleeson J states that abuse of process can capture attempts to invoke the Court’s jurisdiction on bases that are “confused or untenable”. This explains why the inquiry focuses on whether the proposed case has a legally arguable foundation, rather than treating the filing request as a mere administrative step.

At [7], the judgment identifies the legal sources relied on by Kant and briefly describes relevant aspects of them. In particular, it records that s 75(i) of the Constitution confers original jurisdiction in matters arising under a treaty, and that s 33(1)(e) of the Judiciary Act concerns orders or writs of mandamus. The judgment does not decide more broadly how those provisions would apply to a different claim.

At [9], the applicant’s asserted duty is recorded: he contended that the defendant had a duty to bring individual complaints to resolution under Art 22 of the Convention and the Optional Protocol. This is the proposition the Court then tested against the identified instruments.

At [10], the Court states that neither Art 22 nor the Optional Protocol imposed a duty on the defendant to resolve the complaints without delay. It adds that no other basis for that duty had been identified. In plain English, the Court found the proposed claim’s essential legal premise unsupported by the sources relied on in the application.

Finally, [10] says that nothing in the proposed application or supporting affidavit disclosed an arguable basis for the relief. That finding explains the procedural result: the proposed application would be an abuse of process if filed, so leave was refused at [11].

What fact patterns trigger this precedent

The decision is relevant to the procedural situation described in the judgment: a proposed High Court application has been referred to a Justice for leave under r 6.07.3 after a Registrar direction under r 6.07.2. It illustrates that the Court may determine such an application on the papers by examining the face of the proposed application and its supporting material ([1]–[4]).

Its application may be pertinent where the relief sought depends on a particular legal duty, but the legal sources cited in the proposed application do not appear to impose that duty and no alternative basis for it is identified. Here, the asserted duty was that the defendant resolve two individual complaints without delay; the Court found no such duty in Art 22 of the Convention or the Optional Protocol ([9]–[10]).

The judgment does not say that all applications involving international complaints, treaty provisions, or writs are abusive. Nor does it set out a general conclusion about the legal status of the United Nations High Commissioner for Human Rights. Its reasoning is tied to the asserted duty, the materials lodged, and the requested relief in this application.

For professionals assessing the decision’s relevance, the central comparison points are therefore procedural and substantive: whether a leave requirement of this kind applies; what exact relief is sought; which legal source is said to create the duty supporting that relief; and whether the proposed materials identify an arguable connection between that source and the requested order. Those are features apparent from the judgment’s own reasoning, not a separate checklist stated by the Court.

How later courts have treated it

The judgment contains no discussion of later cases applying or distinguishing it. It was delivered on 19 March 2025, and the material provided identifies no later judicial treatment. It would therefore be unsupported to describe later courts as having followed, distinguished, or otherwise treated this decision.

The authorities expressly cited in the judgment are earlier decisions. Re Young (2020) is cited for the r 6.07.1 criteria, paper determination and the description of abuse of process ([4], footnotes 2–5). Re Simmonds [2020] HCA Trans 34 is cited in relation to deciding an application on the papers ([4], footnote 3). Those citations show the sources Gleeson J relied on for the stated procedural principles. They do not establish how any later court has treated Kant.

The judgment’s future significance, if any, would need to be assessed by reviewing subsequent judgments and the particular issues they address. The decision itself supports only the account that Gleeson J applied the cited procedural framework to Kant’s proposed application and refused leave on the stated basis.

Still-open questions

The judgment does not determine whether a different legal source, different pleaded duty, or different requested relief could support another application concerning an international complaint. Its conclusion is confined to the asserted duty to resolve the two complaints without delay, the treaty provisions relied on, and the absence of another identified basis ([8]–[10]).

It also does not decide the merits or disposition of either complaint lodged with the Office of the United Nations Commissioner for Human Rights. The relief sought in the proposed High Court application concerned their resolution, but the order made was only a refusal of leave to issue or file the proposed writ application ([5], [11]).

The judgment identifies s 33 of the Judiciary Act, s 75 of the Constitution, cl 29 of the Magna Carta, and s 12B of the Privacy Act because Kant relied on them ([6]–[7]). It does not provide a separate, detailed analysis of every possible application of each source to the proposed claim. The decisive point in the reasons is the absence of an arguable basis for the asserted duty owed by the defendant ([10]).

Finally, although the Court states that abuse of process has no “closed categories”, it does not attempt an exhaustive definition. It gives the relevant description for this application: an attempt to invoke jurisdiction on a confused or untenable basis ([4]). The judgment therefore leaves broader applications of that concept to be considered in their own procedural and factual contexts.

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