//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] HCA 38
respondent. Application dismissed, with the application determined without listing for hearing.
Golding had already sought special leave to appeal and had been refused. He then made another application, raising some matters that substantially repeated his earlier arguments and other grounds that he had not previously explained omitting. Nettle J did not decide whether a second special leave application was categorically unavailable. Instead, assuming it was available in principle, he held that this particular repeat application was an abuse of process because Golding offered no compelling explanation or exceptional circumstance. The application was dismissed without a hearing.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,287 words · generated 29/09/2026
Re Golding concerned a second attempt by Simon Golding to obtain an extension of time and special leave to appeal. The conviction underlying the applications was for importing a commercial quantity of a border-controlled substance, cocaine, contrary to provisions of the Criminal Code (Cth). The Queensland Court of Appeal had dismissed Golding’s appeal against conviction.
4 cited instruments linked from this judgment.
Golding’s first application, filed on 4 September 2019, challenged the Court of Appeal’s treatment of an Australian Crime Commission examination conducted after he had been charged. The proposed appeal grounds alleged, in substance, that the examination undermined his right to silence, caused forensic prejudice, compromised the integrity of the criminal process, and warranted a permanent stay. On 12 February 2020, Bell J and Nettle J dismissed that application. As Nettle J recounts, the applicant had not identified prejudice sufficient to engage the principles in Strickland (a pseudonym) v Director of Public Prosecutions (Cth), so a proposed appeal did not have a sufficient prospect of success to warrant special leave.
Golding filed his second application on 14 April 2020. It contained four proposed grounds. The first concerned alleged failures to disclose potential witnesses and statements. The second and third again concerned the ACC examination, alleged dissemination of its product, and statutory safeguards. The fourth raised an alleged effect of a pre-trial ruling on the fairness of the jury trial. On 7 May 2020, Gageler J directed under r 6.07 of the High Court Rules 2004 (Cth) that the application not be issued or filed without a Justice’s leave.
Golding argued that a second application was permissible because applications for an extension of time and special leave are interlocutory applications. He also said that grounds corresponding to proposed Grounds II and III had been considered by senior counsel before the first application, but counsel advised against including them. He did not explain why proposed Grounds I and IV had not been raised in the first application.
Nettle J accepted that the applications were interlocutory, and that, other things being equal, a disappointed applicant might be able to try again. But he did not finally decide whether a second special leave application was categorically unavailable under the relevant statutory scheme. Instead, he assumed for the purpose of deciding Golding’s case that a second application could be made, and considered whether this one was an abuse of process. It was dismissed without being listed for hearing, under r 13.03.1 of the High Court Rules.
The judgment supplied has no numbered paragraphs. The references below therefore identify passages by their subject matter or wording, rather than assigning paragraph numbers.
The central reasoning was about the proper use of repeat applications for interlocutory relief. Nettle J stated that an applicant is generally required to advance all grounds relied on in the first application. In the absence of exceptional circumstances, making another application on the same or other grounds will ordinarily be an abuse of process. The example given was discovery of facts that the applicant did not know about and could not have discovered with reasonable diligence at the time of the first application.
For special leave applications, the judgment added a distinct consideration of finality. Refusal of an earlier special leave application is not res judicata between the parties. Nevertheless, such a refusal has long been conceived of as “the final curial act which brings the litigation between the parties to an end”. On that basis, the Court’s practice is to regard a subsequent special leave application traversing substantially the same subject matter as an earlier one as an abuse of process unless there is a compelling explanation or circumstance.
Applying that approach, Nettle J treated proposed Grounds II and III as adding nothing in substance to the arguments advanced in support of the first application. The fact that counsel had advised against including those grounds was not a sufficient basis to apply again. The applicant had accepted that advice at the time; the judgment did not treat a later wish to present those grounds as an exceptional circumstance.
The treatment of proposed Grounds I and IV was more direct. Golding said nothing to explain why he had not raised them in his first application. The judgment’s general rule required him to bring forward the grounds on which he relied in support of the relief sought, absent an exceptional explanation. No such explanation was identified.
Nettle J also addressed the possibility that rejecting the application might deprive Golding of a fair chance of acquittal. He observed that proposed Grounds II and III added nothing in substance to the first application and that the material advanced gave no reason to doubt the earlier holdings concerning those grounds. This was not a fresh determination of the conviction appeal. It explained why the second application did not provide a reason to revisit the earlier refusal.
The judgment did not purport to establish a general, absolute prohibition on second applications for special leave. Nettle J expressly left open whether a second application was legally available, because it was unnecessary to decide that question. The analysis therefore proceeds on an assumed availability and resolves the application through abuse of process.
Before reaching that question, the judgment discussed Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission. Nettle J explained that the Full Court of the Federal Court had held that a second application for leave to appeal to that Court was not open, reasoning that the contrary view would set at nought ss 24(1A) and 25(2) of the Federal Court of Australia Act 1976 (Cth). Because those provisions closely followed the form of ss 21(1), 34(2) and 35(2) of the Judiciary Act 1903 (Cth), Nettle J said it was arguable that the same conclusion might apply to High Court special leave applications. He did not decide that issue.
The operative contribution of Re Golding is accordingly narrower. It states and applies a general abuse-of-process principle for repeat interlocutory applications, then specifies how the Court’s practice applies when a second special leave application traverses substantially the same subject matter as an earlier one. A compelling explanation or circumstance is required to avoid the ordinary conclusion that the later application is an abuse.
The judgment also clarifies the distinction between res judicata and finality. It says an earlier refusal of special leave is not res judicata between the parties. That does not mean that an applicant may simply relitigate substantially the same request. The refusal’s character as the final curial act, together with the Court’s practice and abuse-of-process principles, supports finality without describing the earlier refusal as res judicata.
The text does not report any later appellate consideration or modification of these propositions. Nor does it provide enough material to state how later courts have treated the decision. Its own account should therefore not be extended into a claim about subsequent authorities.
The judgment says that an applicant for interlocutory relief is generally required to advance all grounds relied on, and that a second application will ordinarily be an abuse without exceptional circumstances. In plain English, an applicant is generally expected to put the case forward in full at the first attempt. A later attempt is not ordinarily a chance to add arguments that could have been raised earlier.
Nettle J’s example of an exceptional circumstance is significant because it illustrates the kind of explanation that may matter: newly discovered facts that were not known and could not have been found through reasonable diligence at the time of the first application. The judgment presents this as an example, not an exhaustive list. It does not specify how every other possible explanation should be evaluated.
The special leave passage says that, without a compelling explanation or circumstance, a later application covering substantially the same subject matter will be treated as an abuse of process. In plain English, a second special leave application needs more than a renewed disagreement with the earlier refusal. The applicant must explain compellingly why the repeat application should be entertained.
The statement that refusal of special leave is not res judicata, but has been regarded as the final curial act bringing the litigation to an end, prevents two ideas from being conflated. The first refusal does not technically bar a later application through res judicata, as Nettle J explains. But the Court’s concern for finality can still make a later, substantially repetitive application abusive.
Finally, Nettle J’s statement that it was unnecessary to decide whether a second special leave application was open is an important limit on the decision. In plain English, the judgment should not be read as definitively deciding that every second application is prohibited. Golding lost because the particular application was abusive even on the assumption that a second application was available in principle.
The clearest trigger is a second application for interlocutory relief that seeks the same relief and raises matters that were, or could have been, advanced in the first application. The judgment’s stated approach applies to the same grounds and to other grounds, subject to exceptional circumstances.
In the special leave setting, the relevant feature is substantial overlap in subject matter with an earlier application. The Court looks not only at whether the wording of the grounds is identical, but at whether the later application traverses substantially the same subject matter. In Golding, the later grounds about the ACC examination and alleged prejudice were considered to add nothing in substance to the first application.
The decision also identifies omissions that may matter. Golding did not explain why two proposed grounds had not been advanced the first time. That absence of explanation contributed to the abuse-of-process conclusion. The decision does not say that any later-developed ground is necessarily barred. Rather, it places the burden of explaining a second application in the context of the general expectation that all grounds be advanced at the outset.
An important limit is that the Court did not decide the categorical jurisdictional question. The case therefore provides its clearest guidance where the second application is assumed to be legally available but is challenged as an abuse. It should not be cited as a final ruling that the statutory scheme always prevents a second special leave application.
The judgment’s example of new facts also points to a potentially different scenario: facts discovered only after the first application, which could not have been ascertained with reasonable diligence at that time. Nettle J gave that as an example of exceptional circumstances. The judgment does not decide whether any particular later-emerging fact would satisfy the test, or what other circumstances might be compelling.
The judgment text provided does not cite any decisions after Re Golding, and it contains no account of subsequent judicial treatment. It would therefore be unsupported to say that later courts have followed, distinguished, approved, or limited Re Golding.
Within its own reasoning, Nettle J relied on the Full Court of the Federal Court’s decision in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission as an analogy. He described the Federal Court’s conclusion about repeat leave applications, and noted the similarity between the relevant Federal Court and Judiciary Act provisions. He left open whether that reasoning applied to High Court special leave applications.
The judgment also referred to Strickland in two ways. First, it recounted that the first application had been dismissed because Golding had not shown prejudice sufficient to engage the principles in that case. Second, it observed that the second application’s overlapping ACC-examination grounds added nothing in substance and gave no reason to doubt the earlier holdings. The other authorities listed within the proposed grounds, including Alister, X7, Lee and Moti, were set out as part of Golding’s arguments. The judgment’s disposition did not depend on independently resolving those authorities’ application to his conviction.
For research purposes, the supplied judgment supports a careful description of its own rule and application. It does not support conclusions about later treatment. Any account of subsequent authority would require sources beyond the judgment text provided here.
The most explicit unresolved question is whether the statutory structure makes a second application for special leave categorically unavailable. Nettle J considered the argument by analogy with the Federal Court provisions and Thomas Borthwick, but said that deciding it was unnecessary. Re Golding therefore does not settle the point.
The judgment also does not define the full range of “exceptional circumstances” or “compelling explanation or circumstance”. It provides one example, discovery of facts that were previously unknown and could not have been identified with reasonable diligence. It does not establish a closed list, a detailed test for assessing other explanations, or how the standard applies to different kinds of later-arising grounds.
Another open issue is how much overlap is required before a second special leave application “travers[es] substantially the same subject matter”. In Golding, Nettle J concluded that proposed Grounds II and III added nothing in substance to the first application. The judgment does not provide a broader taxonomy for distinguishing a genuinely new ground from a reformulation of an earlier one.
Finally, the judgment did not reconsider the substantive merits of Golding’s conviction or determine each proposed ground on its merits. Its conclusion rested on abuse of process and, in relation to the overlapping grounds, the absence of a reason to doubt the earlier holdings. The decision should be read within those procedural limits.
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.
IN THE MATTER OF AN APPLICATION BY SIMON GOLDING FOR LEAVE TO ISSUE OR FILE
Re Golding [2020] HCA 38 Date of Judgment: 21 October 2020 B35/2020
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
High Court - Appellate jurisdiction - Application for special leave to appeal - Abuse of process - Where applicant applied for special leave to appeal - Where applicant previously made application for special leave to appeal - Where previous application for special leave refused - Where substance of subsequent application for special leave substantially identical to substance of previous application for special leave - Where no exceptional circumstances identified in subsequent application explaining failure to raise novel issues in previous application - Whether subsequent application for special leave an abuse of process.
Words and phrases - "abuse of process", "application for special leave to appeal", "compelling explanation or circumstance", "exceptional circumstance", "interlocutory application", "res judicata", "same subject matter", "special leave".
Federal Court of Australia Act 1976 (Cth), ss 24(1A), 25(2). Judiciary Act 1903 (Cth), ss 21(1), 34(2), 35(2). High Court Rules 2004 (Cth), rr 6.07, 13.03.
NETTLE J. The applicant requires an extension of time in which to seek leave to issue or file a second application for special leave to appeal against orders of the Court of Appeal of the Supreme Court of Queensland (Gotterson, Morrison and McMurdo JJA), dismissing the applicant's appeal against conviction of an offence of the importation into Australia of a commercial quantity of a border controlled substance, namely, cocaine, contrary to s 11.2A(1) and (2) and s 307.1(1) of the Criminal Code (Cth). On 4 September 2019, the applicant applied for an extension of time in which to seek special leave to appeal on grounds that the Court of Appeal had erred in failing to hold that the Australian Crime Commission's examination of the applicant, after he had been charged with the subject offence, was an abuse of process that so undermined his common law right to silence and so violated the statutory responsibilities of the Australian Crime Commission and the Australian Federal Police as to bring the administration of justice into disrepute. On 12 February 2020, Bell J and I dismissed the application on the basis that the applicant had not identified prejudice arising from his compulsory examination by the Australian Crime Commission sufficient to engage the principles in Strickland (a pseudonym) v Director of Public Prosecutions (Cth), and, thus, that any appeal to this Court would not enjoy a sufficient prospect of success to warrant a grant of special leave to appeal. The applicant filed this second application for extension of time and special leave to appeal on 14 April 2020 and, on 7 May 2020, Gageler J directed, pursuant to r 6.07 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the document without the leave of a Justice first had and obtained. The applicant contends that he is entitled to make this second application for extension of time and special leave to appeal, despite the dismissal of his first application, because, he submits, an application for extension of time and an application for special leave to appeal are interlocutory applications and, therefore, it is open to him as a disappointed applicant to apply again for the same relief. I accept that an application for an extension of time and an application for special leave to appeal are interlocutory applications, and, therefore, that, other things being equal, it might be open to a disappointed applicant to try again. But it is to be observed that the Full Court of the Federal Court of Australia has held that, because the determination of an application for leave to appeal to the Full Court of that Court is determined in the exercise of the Federal Court's appellate jurisdiction (whether by a single judge or the Full Court), it is not open to an applicant to make a second application for leave to appeal. In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission, the Full Court concluded that to hold otherwise would set at nought the provisions of ss 24(1A) and 25(2) of the Federal Court of Australia Act 1976 (Cth). And since the form of those provisions closely follows the form of ss 21(1), 34(2) and 35(2) of the Judiciary Act 1903 (Cth), it is arguable that the same is true of applications for special leave to appeal to the High Court. It is unnecessary, however, for the purposes of this application finally to determine that question, because, assuming for the sake of argument it is open to an applicant to make a second application for special leave to appeal, I consider that an appeal to this Court would be bound to fail. The proposed grounds of appeal preferred in the applicant's first application for special leave to appeal, filed on 4 September 2019, were as follows: "PART I: Proposed grounds of appeal I.I The Queensland Court of Appeal erred in law by holding that there had not been occasioned to the Applicant a miscarriage of justice by reason of an abuse of process arising from the fact of the Applicant's unlawful examination by the Australian Crime Commission ('ACC') on 22 October 2010 and consequent deprivation of forensic advantage in that the Applicant could not have exercised his right to give or not give evidence without risk of further prosecution if his evidence was in contradistinction to the evidence he was compelled to give before the ACC I.II The Queensland Court of Appeal erred in law by failing to recognise the Executive examination of the Applicant by the ACC on the subject charge did not violate or undermine the 'trust reposed constitutionally' per French CJ, Gummow, Hayne, Crennan, Kiefel (as her Honour was) and Bell JJ; Moti v R (2011) 245 CLR 456 at 478 at para 57 in the CH III courts to protect the integrity and fairness of their processes. I.III The Queensland Court of Appeal erred in law by holding that the Applicant's trial was not a miscarriage of justice nor an abuse of process justifying a permanent stay of criminal proceedings in circumstances where there had been Executive examination on charge of the Applicant on 28 October 2010 by the ACC thereby constituting a contempt of court and an impermissible interference with the administration of criminal justice by compromising the Applicant's right of election pursuant to s618 of the Criminal Code (Qld) and Rule 50 of the Criminal Practise Rules 1999(Qld), as picked up and applied by s68 of the Judiciary Act 1903(Cth). I.VI The Queensland Court of Appeal erred in law by holding that a permanent stay of criminal proceedings is only available where a person is able to demonstrate actual practical prejudice caused by Executive examination on charge." (emphasis and errors in original) The proposed grounds of appeal preferred in the applicant's proposed second application for special leave, filed on 14 April 2020, are: "I.I: The Court of Appeal erred in law by holding that there had not been occasioned to the Applicant a miscarriage of justice by reason of the prosecution failing to disclose the identity of potential witnesses and statements thereof lawfully sought and ordered by the Court. Similar failures to disclose the identity of potential witnesses were regarded in Alister v The Queen [1984] 154 CLR 404 (Alister) (per Brennan J at [451]) as rendering the trial one that was not 'a trial according to law' as the right of the accused to procure witnesses should not have been denied to a defendant. I.II: The Court of Appeal erred in law by holding that there had not been occasioned to the Applicant a miscarriage of justice, as it was known to the Court the prosecution were in attendance at the Applicant's unlawful coercive examination (see X7 v Australian Crime Commission (2013) 248 CLR (X7)), were armed with, in possession of and, as presented within the record book, there was an element of uncontrolled dissemination of the coercive examination product to and within the AFP, ACBPS and the office of the CDPP, all in disregard of key safeguards within the ACC Act. Such issues were deemed to have resulted in a substantial miscarriage of justice in Lee v The Queen (2014) HCA 20 (Lee No 2) see also Strickland (a pseudonym) and others v DPP (Cth) [2018] HCA 53 (Strickland). I.III: The Court of Appeal failed to recognise that the Executive examination held by the Australian Crimes Commission (ACC) upon the Applicant (being an unlawful post-charge examination on the subject matter of the charge, see: X7) was not a 'special investigation / operation in fact'. As a result, that Court failed to recognise that the ACC, AFP and ACBPS had violated and/or undermined their 'statutory responsibilities' as recognized per Kiefel CJ, Bell and Nettle JJ in Strickland at [101], within Division 2 of Pt II of the ACC Act. Such actions infringed upon the Applicant's common law right to silence, which has arguably brought the administration of justice into disrepute. I.IV: New Ground: The Court of Appeal failed to recognise the Supreme Court's effective finding of the Applicant's, within a restricted hearing and the consequent published ruling - without pseudonym names - inferring the Applicant's guilt, prior to jury trial held, therefore resulting in a violation of the Applicant's mandatory common law right of a trial by jury within provisions of the Jury Act (Qld) and the irredeemable prejudice that arose, as the trial Judge Atkinson J and Court staff were privy to a published ruling and embargoed coercive examination product held within the Court's files." (emphasis and errors in original) In his affidavit in support of the application, the applicant in effect contends that this second application for special leave to appeal should not be regarded as an abuse of process because Grounds II and III as preferred in the proposed second application are in substance the same as draft grounds of appeal that were presented to senior counsel in advance of the first application for special leave, but which counsel advised should not be included for fear they would detract from the prospects of success of the grounds that were advanced. The applicant says nothing as to why Grounds I and IV preferred in the proposed second application were not advanced in support of the first application. The fact that the applicant may have wished to advance grounds in support of an interlocutory application that counsel advised, and the applicant accepted, were unmeritorious or unhelpful to the application is not a basis to apply again on those grounds. Nor is it a basis to apply again that, either before or after the first application, further grounds might have occurred to an applicant on which the applicant now seeks to rely. Generally speaking, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the relief sought; and, in the absence of exceptional circumstances, such as, for example, the discovery of facts of which the applicant was not aware and which the applicant could not have ascertained with reasonable diligence at the time of the first application, it will ordinarily be regarded as an abuse of process to make a second application for interlocutory relief on the same or other grounds. Furthermore, in the case of an application for special leave to appeal, it is also to be borne in mind that, although refusal of an earlier application for special leave is not res judicata between the parties, the order refusing the first application has long been conceived of as "the final curial act which brings the litigation between the parties to an end". Thus, in the absence of a compelling explanation or circumstance, the practice of this Court is to regard a subsequent application for special leave traversing substantially the same subject matter as an earlier application as an abuse of process. Lest it be thought, however, that so to conclude may be to deprive the applicant of a chance of acquittal otherwise fairly open to him, it is also to be observed that proposed Grounds II and III add nothing in substance to what was advanced in support of the first application, and, on the material advanced in support of this application, there is no reason to doubt the correctness of the holdings the subject of those grounds. Conclusion For these reasons, I direct, pursuant to r 13.03.1 of the High Court Rules, that the application be determined without listing it for hearing. It is ordered that the application be dismissed.
(2011) 245 CLR 456
Application dismissed, with the application determined without listing for hearing.