11 I am of the view that the Registrar was correct in considering that the summons can not succeed, and I so state because one thing that is before me and that I can deal with, is whether the Registrar's direction remains.
12 McClellan J was exercising the jurisdiction of the Supreme Court. The Supreme Court (Summary Jurisdiction) Act, s 3, makes that plain. He was the Supreme Court. The Supreme Court will not make an order for prohibition against the Supreme Court, that is, one Judge will not make an order for prohibition directed to another Judge of the Court, even if prerogative relief would be available notwithstanding that the Court is in general a superior court of unlimited jurisdiction. The reasoning of Drummond J in Bird v Free (1994) 126 ALR 475 at 478-9, expressed in relation to the Federal Court of Australia, is equally applicable in that respect. It follows, in my view, that prerogative relief in the nature of mandamus, which is effectively what the claimants sought in their summons, would not be available.
13 Section 48(2) of the Supreme Court Act empowers the Court of Appeal to grant prerogative relief of various kinds in relation to specified tribunals. But a Division of the Court is not a specified tribunal, and I do not think that that means that the Court of Appeal can grant prerogative relief directed to a Judge sitting in a Division of the Court.
14 Hence it seems to me that the direction of the Registrar was well founded. I do not understand the direction to be a direction which imposes an absolute duty on the claimants, so that if they fail to file an ordinary summons for leave to appeal they will be in contempt of court. The Registrar's purpose, as I understand it, was to ensure that if the claimants were to seek to prosecute what they believe to be their rights, their doing so by way of appeal would be by an application for leave to appeal. The Registrar did not specify a time, and it seems to me appropriate that that be done so that matters can be brought to a head. Further, the application for leave to appeal and any necessary extension of time can most conveniently be brought before the bench of three before whom the summons is brought.
15 I go then to the fourth order sought. The claimants have made clear today, as the declaratory relief claimed in the notice of motion concerning filing a notice of appeal demonstrates, that they consider that they have a right of appeal, or at least that they would have a right of appeal but for being out of time. They will say, as I understand it, that they only fell out of time because they took the wrong course of going to the Court of Criminal Appeal. I have indicated to the claimants that I will not extend the time for filing a notice of appeal, as it is apparent that the opponents contend that the claimants do not have a right of appeal but require leave and that is a matter which is relevant to extending time. If, therefore, the claimants are going to assert an entitlement to appeal as of right, that is without leave, and if they apply for an extension of the time within which to do so, that would most conveniently come before the Court on the same occasion on which the application for leave to appeal is before the court.
16 It is in that rather complicated procedural situation that I dismiss the notice of motion, but my doing so will not preclude the claimants from making an application for an extension of the time within which to appeal as of right, nor of course will it preclude them from making an application for leave to appeal and any concomitant extension of time. I should direct that if the claimants are to make either application they should do so within a defined time so that, as I have previously said, the matter can be brought to a head, and I direct that any application for an extension of the time within which to appeal and any application for leave to appeal and an extension of the time within which to seek leave to appeal be brought by filing of the necessary process within 21 days from today's date. I stand the summons (that is the summons in the Court of Appeal) over to the date on which those applications are returnable before the Registrar, so that from then on the summons and the applications can travel together with a view to all being brought before the Court at the same time and some finality achieved in knowing the rights and obligations of the various parties.
17 In the event that the claimants do not file either of the applications within the 21 days, so that the summons remains on foot, I have no doubt that the opponents will seek to have it brought before the Registrar with a view to the summons itself being listed before the Court.
18 I have dealt with the matter in the absence of two of the opponents named in the notice of motion. One, the fifth opponent, I am told has not been served. The other, the eighth opponent, I am told was served. I am told that she has been in contact with the representative of other of the opponents, and I direct that she be given notice of these reasons.