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austlii:cth/HCASJ/2025/7
procedural. The application dated 29 November 2024 for leave to file a Notice of Cross-Appeal was refused.
3 cited instruments linked from this judgment.
Mr Batak wanted to file a cross-appeal after the time limit had passed. His proposed cross-appeal raised the same points as his separate application for special leave, which the Court had refused the day before. Justice Gleeson considered that allowing more time for the same points would serve no purpose and refused the application. The decision addresses that procedural application; it does not decide the substantive grounds of the Crown's appeal.
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1,929 words · generated 03/10/2026
The judgment is an interlocutory ruling by Gleeson J about filing time, not a decision on the merits of the Crown's criminal appeal or on whether Mr Batak should be acquitted. Its operative order is short: “The application dated 29 November 2024 for leave to file a Notice of Cross-Appeal is refused.”
The procedural background began with the New South Wales Court of Criminal Appeal. That court allowed Mr Batak's appeal, quashed his conviction for murder on count 1, and ordered a retrial rather than entering a verdict of acquittal ([2]). The Crown then sought special leave to appeal to the High Court concerning the quashing of the conviction. The Crown received special leave on 7 November 2024 and filed and served its Notice of Appeal on 21 November 2024 ([4]).
Mr Batak sought to challenge the retrial order. He had applied for an extension of time to seek special leave on 5 November 2024 ([3]). Separately, he sought to join the Crown's appeal by filing a Notice of Cross-Appeal. Rule 42.08.1 of the High Court Rules 2004 (Cth) gave a respondent wishing to appeal from part of the judgment below, or seeking its variation, 7 days after service of the Notice of Appeal to file a cross-appeal. On the dates recorded by Gleeson J, the deadline was 28 November 2024 ([4]).
Mr Batak's solicitor attempted to file the notice on the deadline, but it was not accepted for filing. The application for leave to file it was dated 29 November 2024 ([4]). The proposed grounds said that the Court of Criminal Appeal erred in failing to find the jury's verdict unreasonable and that its discretion miscarried by failing to order an acquittal ([5]).
The decisive intervening event was the High Court's refusal, on 6 February 2025, of Mr Batak's special leave application on those same grounds ([6]). Gleeson J concluded that extending time for the proposed cross-appeal would be futile because it raised the very contentions for which special leave had just been refused ([8]). The application was determined on the papers as an interlocutory application, as permitted by r 13.03.1 ([7]).
The court's reasoning is contained in a short sequence. First, the proposed cross-appeal was late under the relevant procedure, so leave was required ([1], [4]). Secondly, its grounds were identical to those Mr Batak had put forward in his special leave application ([5]-[6]). Thirdly, that special leave application had been refused on 6 February 2025. On that basis, Gleeson J said it “would be futile” to grant the extension of time sought for those same contentions ([8]).
The judgment does not state that every late cross-appeal is futile after a related special leave application has been refused. Nor does it set out a general test for extensions of time. Its stated reasoning is tied to this procedural setting: the application sought extra time for a proposed cross-appeal that repeated grounds in a special leave application already refused by the Court.
The Court also dealt with the manner of determination. Gleeson J identified the application as interlocutory and said it could be determined on the papers without a hearing under r 13.03.1 ([7]). The judgment does not describe any oral hearing, contested evidence, or separate factual findings about why the filing attempt was not accepted. It records the solicitor's evidence that she attempted to file on 28 November, but that the notice was not accepted ([4]).
The distinction between the filing deadline and the reason for refusal matters. The judgment identifies the deadline as 28 November 2024 and explains why leave was needed. But it does not say that lateness alone determined the application. The express reason for refusing it appears in [8]: the same contentions had already failed in the special leave application, making the requested extension futile in the circumstances.
This judgment does not announce a change in legal doctrine. It applies two provisions of the High Court Rules to a procedural application. Rule 42.08.1 is described as requiring a respondent wishing to appeal from part of the decision below, or seeking a variation, to file a Notice of Cross-Appeal within 7 days of service of the Notice of Appeal ([4]). The Court identifies r 13.03.1 as permitting an interlocutory application to be determined on the papers without listing it for hearing ([7]).
Before the ruling, the Crown's appeal was proceeding after special leave had been granted, and Mr Batak's proposed cross-appeal had not been accepted for filing by the stated deadline. Mr Batak had also pursued special leave to challenge the order for a retrial. By the time Gleeson J considered the late-filing application, that special leave application had been refused ([6]).
After the ruling, the proposed cross-appeal was not admitted, and the application for leave to file it was closed by the refusal order ([9]). The judgment does not state the subsequent procedural course of the Crown appeal, nor does it determine the merits of the Crown's challenge.
The decision therefore supports a narrow description of the “before and after” position in this proceeding: before, leave to file a late cross-appeal was sought on grounds matching a refused special leave application; after, the application was refused as futile. It would go beyond the judgment to claim that it altered the general law about cross-appeals, time extensions, or the legal effect of refusing special leave. The source provides no broader doctrinal discussion.
At [4], Gleeson J explains the timing rule: “Rule 42.08.1 requires that a respondent who wishes to appeal from a part of the judgment below, or who seeks a variation of part of that judgment, may file a Notice of Cross-Appeal within 7 days of service of the Notice of Appeal.” In plain English, a respondent who wants to challenge part of the earlier decision in the existing appeal has a short filing period, measured from service of the appellant's notice. The judgment applies that period to the dates in this matter and identifies 28 November 2024 as the deadline.
At [5], the proposed cross-appeal is set out in two grounds: the Court of Criminal Appeal allegedly failed to conclude that the jury's verdict was unreasonable, and its discretion allegedly miscarried by not ordering an acquittal. Those are descriptions of Mr Batak's proposed arguments, not findings by Gleeson J that either argument was correct.
At [7], the judge states that the application “may therefore be determined on the papers without listing the application for hearing.” The practical meaning is that the interlocutory application could be decided from the written material, without a listed hearing. The judgment does not say that every application of this type must be decided that way.
The central passage is [8]: “The special leave application having been refused, it would be futile to grant the extension of time sought by the application in respect of the very same contentions.” In plain English, the Court would not extend the time for a cross-appeal making the same arguments as an application for special leave that had just been refused. The final order at [9] gives effect to that reasoning by refusing the application.
The decision is most directly relevant to a procedural pattern with these features: a party is the respondent in an appeal; that party seeks to challenge some part of the decision below by cross-appeal; the applicable filing period has expired; and the proposed cross-appeal advances the same contentions as a special leave application that has already been refused. In this judgment, the Crown had filed and served its Notice of Appeal, the cross-appeal deadline was calculated as 28 November 2024, and the proposed filing was not accepted on the attempted filing date ([4]). The special leave refusal occurred on 6 February 2025, before Gleeson J decided the application on 7 February ([6], [8]).
The decision does not establish that any procedural overlap between a cross-appeal and another application automatically makes an extension futile. The specific identity of the grounds is emphasised in [5]-[6], and the refusal of the special leave application is the fact that supplies the stated reason in [8]. Nor does the judgment say that an attempt to file on the deadline necessarily satisfies a filing rule if the document is not accepted. It records the attempt and non-acceptance, but does not decide a wider question about filing-system problems or the reasons for non-acceptance.
For a different fact pattern, a lawyer would need to check the governing rules, the exact relief sought, the procedural history, whether the arguments truly match, and the status and effect of any related application. Those matters are not resolved beyond the facts recorded here.
The judgment contains no information about later judicial treatment. It was delivered on 7 February 2025, and the supplied text refers to earlier decisions and an earlier special leave disposition, but identifies no later court considering this ruling.
The decisions mentioned in the judgment are part of the procedural history, not later treatment of this decision. “Batak v R” (2024) 114 NSWLR 313 is the Court of Criminal Appeal decision from which the Crown sought to appeal ([2]). “The King v Batak” [2024] HCASL 304 is cited for the Crown's grant of special leave ([4]). “Batak v The King” [2025] HCADisp15 is cited for the refusal of Mr Batak's special leave application ([6]). None is presented as a later judgment applying or distinguishing Gleeson J's ruling in this matter.
Accordingly, the source supports no claim that the ruling has been followed, distinguished, or otherwise treated by later courts. The narrow conclusion is simply that the supplied judgment does not report subsequent treatment. Any account of later case law would require sources beyond this judgment.
The judgment leaves several matters outside its scope. It does not explain why the attempted filing was not accepted, whether that was due to a technical or procedural issue, or whether any further material was considered about the filing attempt. It records only that the solicitor tried to file on 28 November 2024 and that the notice was not accepted ([4]).
It also does not analyse the merits of the proposed grounds. The alleged unreasonableness of the jury verdict and the alleged miscarriage of discretion appear only as the proposed cross-appeal grounds ([5]). Gleeson J did not decide whether the verdict was unreasonable, whether an acquittal should have been ordered, or whether the Court of Criminal Appeal's order for a retrial was legally correct. The judgment's conclusion is procedural and rests on futility after refusal of special leave, not an evaluation of those arguments ([8]-[9]).
Other open questions include how a court would approach an extension application where the related special leave application remained undecided, had been granted, or concerned materially different grounds. The judgment does not address those situations. It also does not set out a general framework for deciding applications to extend time under r 42.08.1.
Finally, the ruling does not describe what happened later in the Crown appeal. Its subject is the application dated 29 November 2024, and its order is confined to refusing leave to file the proposed Notice of Cross-Appeal. Any conclusion about the ultimate criminal proceedings would need to be grounded in other records.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON J
THE KING APPELLANT
AND
CEM BATAK RESPONDENT
[2025] HCASJ 7
Date of Judgment: 7 February 2025
S148 of 2024
ORDER
Representation
The appellant is represented by Solicitor for Public Prosecutions (NSW)
The respondent is represented by Fahmy Lawyers
On 7 June 2024, the Crown filed an application for special leave to appeal from the judgment of the Court of Criminal Appeal of New South Wales in Batak v R (2024) 114 NSWLR 313. The orders of the Court of Criminal Appeal were to the effect that Mr Batak's appeal was allowed and his conviction for murder ("count 1") was quashed, but a retrial was ordered on that count, as opposed to the entry of verdict of acquittal.2 The Crown's proposed appeal to this Court concerned the quashing of the conviction on count 1.
On 5 November 2024, the applicant filed an application seeking an extension of time within which to seek special leave to appeal from the same judgment of the Court of Criminal Appeal. The application sought to challenge the Court of Criminal Appeal's order for a retrial.
On 7 November 2024, this Court granted the Crown special leave to appeal from the judgment of the Court of Criminal Appeal.3 On 21 November 2024, the Crown filed and served a Notice of Appeal in accordance with the High Court Rules 2004 (Cth) ("the Crown appeal").4 Rule 42.08.1 requires that a respondent who wishes to appeal from a part of the judgment below, or who seeks a variation of part of that judgment, may file a Notice of Cross-Appeal within 7 days of service of the Notice of Appeal. The applicant was therefore required to file any Notice of Cross-Appeal in the Crown appeal by 28 November 2024. Ms Fahmy deposed that she attempted to file the Notice of Cross-Appeal on 28 November 2024, but it was not accepted for filing.
The proposed Notice of Cross‑Appeal seeks to contend that:
The Court of Criminal Appeal erred in failing to conclude that the verdict of the jury was unreasonable.
The Court of Criminal Appeal's discretion miscarried in failing to order that the applicant be acquitted of Count 1.
These grounds are identical to the proposed grounds of appeal identified by the applicant in his special leave application. On 6 February 2025, this Court refused the applicant's application for special leave to appeal from the judgment of the Court of Criminal Appeal.5
The application for leave to file the proposed Notice of Cross-Appeal is an interlocutory application. It may therefore be determined on the papers without listing the application for hearing.6
The special leave application having been refused, it would be futile to grant the extension of time sought by the application in respect of the very same contentions.
The application dated 29 November 2024 is refused.
The King
Batak [2025] HCASJ 7
(2024) 114 NSWLR 313
The application dated 29 November 2024 for leave to file a Notice of Cross-Appeal was refused.