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austlii:cth/HCASJ/2024/23
procedural. The application filed on 10 May 2024 for leave to issue or file an application for a constitutional or other writ was dismissed.
Jagot J refused Scott permission to file a proposed High Court writ application. The governing approach, drawn from Re Young, was to assess whether the proposed document appeared on its face to be abusive, frivolous or vexatious, or outside the Court's jurisdiction. The proposed application made broad allegations about unfairness, bias and legal rights, but did not identify a legal error or explain a legally intelligible basis for the requested writs. The Court therefore dismissed the application for leave. It did not decide the underlying fee dispute or determine the proposed writ claims on their merits.
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2,008 words · generated 03/10/2026
This is a short procedural decision by Jagot J, not a determination of the underlying dispute between Susan Jane Scott and Nimlaw Pty Ltd. The order records that Scott's application, filed on 10 May 2024, for leave to issue or file an application for a constitutional or other writ was dismissed. The reasons explain why that permission was refused.
1 cited instrument linked from this judgment.
The filing restriction arose from a direction made by Gordon J on 24 April 2024 under r 6.07.2 of the High Court Rules 2004 (Cth). The direction required the Registrar to refuse to issue or file Scott's proposed writ application unless she first obtained leave from a Justice. Scott then applied ex parte for leave under r 6.07.3 and supported the request with an affidavit filed on 11 May 2024 ([1]).
The proposed application named five defendants: three Federal Court justices, a Federal Circuit Court Registrar and Nimlaw ([2]). Its background was a dispute over Scott's liability to pay Nimlaw for legal services. A judgment debt in Nimlaw's favour was entered in the District Court of South Australia in June 2023, and Nimlaw served a bankruptcy notice in July 2023 ([3]).
Scott had already pursued proceedings in the Federal Court relating to that notice. Charlesworth J dismissed her application to set it aside on 15 November 2023. O'Bryan J dismissed a later application for a stay pending appeal, saying the appeal grounds had “no prospects of success”. McElwaine J later dismissed a further application seeking leave to appeal the stay decision, and also dismissed Scott's appeal against the decision refusing to set aside the bankruptcy notice ([3]). Those earlier matters form the procedural background; Jagot J was not deciding them afresh.
The proposed High Court application sought multiple writs of certiorari and mandamus to quash the earlier decisions. The grounds, as Jagot J understood them from the material, included general claims of denial of legal rights, procedural unfairness, actual bias and abuse of power. The application and supporting affidavit, including exhibits, exceeded 1,000 pages. Jagot J concluded that the material identified no legal error in the earlier decisions and gave no legally intelligible basis for the relief sought ([4]).
The decision turned on the threshold for permission to file, rather than a full hearing of the proposed writ claims. Jagot J adopted the principles stated by Gageler J in Re Young. Under that approach, the r 6.07.3 discretion is exercised by reference to the same criteria that inform the Registrar's action under r 6.07.1 ([5]). The passage says that leave will ordinarily be refused where the proposed document appears “on its face” to be an abuse of process, frivolous or vexatious, or outside the Court's jurisdiction.
The quoted passage also explains that abuse of process is not limited to a closed list of categories. For present purposes, it includes an attempt to invoke the High Court's original or appellate jurisdiction on a basis that is confused or manifestly untenable ([5]). This is a screening standard applied to the proposed filing as presented. It does not require the Court to resolve every factual or legal matter that might have arisen had leave been granted.
Jagot J applied that standard to the actual content of Scott's proposed application. The reasons do not treat the applicant's volume of material as, by itself, the decisive defect. Rather, the express finding is that neither the general allegations nor the application and affidavit material identified any legal error in the decisions below or advanced a legally intelligible basis for the writ relief ([4]). The Court thus connected the nature of the grounds to the Re Young test: a proposed proceeding that does not intelligibly explain why the challenged decisions are legally defective may amount to an attempt to invoke the Court's jurisdiction on a confused or untenable basis.
The conclusion is deliberately framed as a facial assessment. Jagot J said the application “on its face” exposed itself as frivolous and vexatious and, accordingly, an abuse of process ([4]). Applying the Re Young criteria, the leave application had to be dismissed ([6]). The order does not purport to decide whether any underlying allegation about the fee dispute, bankruptcy notice or earlier proceedings was factually true.
The reasons do not announce a new test or state that they change the law. They apply the procedural principles in Re Young (2020), as quoted at paragraph 5. The decision's contribution is therefore an application of an existing filing-screening framework to this proposed application, rather than a new substantive rule about bankruptcy, legal costs or judicial review.
The framework described in the judgment has three relevant features. First, the Justice's discretion under r 6.07.3 tracks the criteria that inform the Registrar's action under r 6.07.1. Secondly, the assessment is whether the proposed document appears “on its face” to fall into a category warranting refusal. Thirdly, abuse of process is an open-textured concept; it includes a confused or manifestly untenable attempt to invoke the High Court's original or appellate jurisdiction ([5]).
The “before and after” comparison must be kept narrow. Before this decision, Re Young supplied the stated criteria for an application under r 6.07.3. After this decision, those same criteria were applied to Scott's proposed filing, and leave was refused because it disclosed no identified legal error or intelligible basis for the writs sought ([4]-[6]). The reasons do not say that the test was expanded, narrowed or replaced.
Nor does this judgment decide the legal merits of Scott's earlier proceedings or the dispute over Nimlaw's fees. It recounts the earlier Federal Court decisions as procedural history and uses them to identify what the proposed High Court application sought to challenge ([3]-[4]). Any account of how the law changed in those other proceedings would go beyond the reasons in this judgment.
At paragraph 5, the judgment quotes Re Young: “The discretion to refuse leave ... falls to be exercised by a Justice by reference to the same criteria as those which inform the action of the Registrar under r 6.07.1.” In plain English, the Justice considers the same kinds of threshold concerns that apply when the Registrar screens a document under the relevant rule.
The next key statement is that leave will ordinarily be refused where the document appears “on its face” to be an abuse of process, frivolous or vexatious, or outside the Court's jurisdiction ([5]). “On its face” signals an assessment of the proposed document and material as presented. The paragraph does not say that every doubtful filing must be rejected; it states when refusal will ordinarily be appropriate.
The passage also says: “The concept of abuse of process cannot be confined within closed categories” ([5]). This means the examples are not exhaustive. It then gives a relevant instance: a confused or manifestly untenable attempt to invoke the High Court's jurisdiction. The passage is quoted from Re Young, not presented as newly developed reasoning by Jagot J.
Jagot J's application of that principle appears at paragraph 4. The reasons state that the material did not “identify any legal error in the decisions below” or “advance any legally intelligible basis for the relief sought”. Put plainly, the Court could not discern from the proposed filing a coherent legal reason for quashing the earlier decisions. Jagot J then characterised the proposed application as facially frivolous and vexatious and an abuse of process ([4]).
Finally, paragraph 6 is concise: “the ex parte application filed on 10 May 2024 for leave to issue or file an application for a constitutional or other writ must be dismissed.” This is the operative consequence of the threshold assessment. It is not a ruling after a substantive hearing on whether the proposed writ claims would ultimately succeed.
The decision is relevant to the specific procedural situation in which a filing restriction has been imposed under r 6.07.2 and an applicant seeks leave under r 6.07.3. It illustrates that the leave application is assessed against the screening criteria described in Re Young, rather than being treated as an automatic entitlement to file the proposed document ([1], [5]).
The case also illustrates the kind of deficiency that mattered here: broad allegations directed at earlier decisions, without identifying legal error or providing a legally intelligible basis for the requested relief ([4]). The reasons mention claims of denial of legal rights, procedural unfairness, actual bias and abuse of power, but do not hold that those labels are inherently insufficient in every case. The decisive finding was about the content of this application and its failure to explain the legal basis for the writs.
For research and case comparison, useful features to check against another matter include whether there was a prior filing direction, whether the applicant sought leave under the corresponding rule, what grounds the proposed document actually stated, and whether it connected those grounds to an identifiable legal error or remedy. These are features reflected in the judgment, not a separate checklist prescribed by the Court.
The decision should not be treated as establishing a general rule that voluminous material, unrepresented litigants, or complaints about procedural fairness automatically make a filing abusive. The judgment records that the supporting material exceeded 1,000 pages, but its stated reason for refusal is that the material did not identify legal error or an intelligible basis for relief ([4]). The distinction matters when comparing the reasoning with a different proposed filing.
The supplied judgment contains no discussion of decisions that post-date 14 June 2024, and the material provided does not establish how later courts have treated this decision. It would therefore be unsupported to describe it as followed, distinguished or otherwise treated by later courts.
The precedent expressly relied on in the reasons is Re Young. Jagot J quotes Gageler J's statement of the applicable r 6.07.3 criteria and applies that framework to the proposed filing ([5]-[6]). The reasons also refer to three earlier Federal Court decisions in Scott's litigation: Scott v Nimlaw Pty Ltd [2023] FCA 1420, Scott v Nimlaw Pty Ltd [No 2] [2023] FCA 1472, and Scott v Nimlaw Pty Ltd [2024] FCA 26 ([3]). Those decisions are recounted as procedural history and as decisions that the proposed writ application sought to challenge. They are not identified as authorities establishing the r 6.07.3 test.
A later-treatment assessment would require sources not included in this judgment, such as subsequent judgments citing [2024] HCASJ 23. No such authorities should be inferred from the reasons themselves.
The reasons resolve whether this particular proposed filing should receive leave on the material before Jagot J. They do not decide the substantive merits of the proposed writ grounds, because leave was refused at the filing threshold ([4]-[6]). Accordingly, the judgment does not determine whether the earlier Federal Court decisions were legally correct, whether the bankruptcy notice was valid, or whether Scott was liable for Nimlaw's fees.
The reasons do not set out a detailed taxonomy of what makes a proposed filing “confused or manifestly untenable”. They quote the general description from Re Young and apply it to the facts before the Court ([5]). The judgment therefore leaves room for future cases to apply that description to other kinds of proposed documents and grounds.
The judgment also does not explain in detail how the volume of supporting material affected the assessment, beyond recording its size and finding that the material did not identify legal error or provide an intelligible basis for relief ([4]). It does not state that length alone is a criterion for refusing leave.
Finally, the judgment supplies no subsequent authorities from which to assess its later reception. Any account of subsequent treatment, or of developments after the judgment date, would require additional legal sources. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it or using any draft, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
JAGOT J
IN THE MATTER OF AN APPLICATION BY SUSAN JANE SCOTT FOR LEAVE TO ISSUE OR FILE
[2024] HCASJ 23
Date of Judgment: 14 June 2024
A6 of 2024
ORDER
Representation
The applicant is unrepresented
JAGOT J. On 24 April 2024, Gordon J made a direction under r 6.07.2 of the High Court Rules 2004 (Cth) that the Registrar refuse to issue or file an application by the applicant in this matter for a constitutional or other writ without leave of a Justice first had and obtained. On 10 May 2024, pursuant to r 6.07.3 of the High Court Rules, the applicant filed an ex parte application seeking such leave. The ex parte application is supported by an affidavit filed by the applicant on 11 May 2024. These reasons explain why the ex parte application for leave is dismissed.
The application for a constitutional or other writ for which leave to file is sought nominates five proposed defendants, comprising three justices of the Federal Court of Australia, a Registrar of the Federal Circuit Court of Australia, and an incorporated legal practice, Nimlaw Pty Ltd ("Nimlaw").
The background to this application concerns a dispute between the applicant and Nimlaw about the liability of the applicant to pay Nimlaw for legal services provided to her. This dispute resulted in a judgment debt being entered against the applicant in favour of Nimlaw in the District Court of South Australia in June 2023 and the service of a bankruptcy notice on the applicant by Nimlaw in July 2023. The applicant subsequently filed an originating application in the Federal Court of Australia seeking to set aside the bankruptcy notice. Charlesworth J dismissed that originating application on 15 November 2023, her Honour stating that although the applicant's "sense of grievance [was] a genuine one ... the grievances to which [the applicant referred were] not grievances that affect[ed] the private rights and obligations as between her and [Nimlaw]".1 On 19 November 2023, the applicant lodged a notice of appeal against the dismissal of the originating application and sought, in a separate interlocutory application, a stay of the bankruptcy notice until the determination of that appeal. O'Bryan J dismissed the interlocutory application on 24 November 2023 on the basis that the grounds of appeal had "no prospects of success".2 On 30 November 2023, the applicant lodged a further originating application seeking leave to appeal against O'Bryan J's orders dismissing the interlocutory application for a stay of the bankruptcy notice. On 25 January 2024, McElwaine J dismissed this further originating application on the basis that the applicant's contentions did "not identify why O'Bryan J erred in his reasoning".3 On 16 February 2024 McElwaine J also dismissed the applicant's appeal against the earlier decision of 15 November 2023 (which had dismissed the application to set aside the bankruptcy notice).
In the application for a constitutional or other writ proposed to be filed in this Court, the applicant seeks multiple writs of certiorari, as well as writs of mandamus, quashing these previous decisions. As best as it can be ascertained from the material filed before this Court, the application relies on generalised complaints such as a "denial of [her] legal rights" and a "refusal of procedural fairness ... against [her] reasonable and legitimate expectations, against the incompatibility doctrine of the constitutional judicial role and as actual bias". The applicant also describes the decisions below as involving an "abuse of power as errors of fact, law and equity" and asserts that the "actions of the Federal Court [represent] the abrogation of their constitutional role ... to uphold the constitution and the [r]ule of [l]aw". None of these contentions, or any of the material in the application or supporting affidavit (which, including its exhibits, totals over 1000 pages), identity any legal error in the decisions below or advance any legally intelligible basis for the relief sought. The application, on its face, exposes that it is both frivolous and vexatious and, accordingly, an abuse of process.
The relevant principles governing the discretion to refuse leave to issue or file a document subject to the direction of a Justice under r 6.07.2 were outlined by Gageler J in Re Young, in which his Honour stated:4
"The discretion to refuse leave on an application made under r 6.07.3 of the High Court Rules falls to be exercised by a Justice by reference to the same criteria as those which inform the action of the Registrar under r 6.07.1. The discretion will ordinarily be exercised to refuse leave to issue or file a document where the document appears to the Justice determining the application '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.
...
The concept of abuse of process cannot be confined within closed categories. Sufficiently for present purposes, it encompasses an attempt to invoke the original or appellate jurisdiction of the High Court on a basis that is confused or manifestly untenable."
(2020) 94 ALJR 448
The application filed on 10 May 2024 for leave to issue or file an application for a constitutional or other writ was dismissed.