Re Kavanagh's Application [2003] HCA 76

HIGH COURT OF AUSTRALIA

KIRBY J

IN THE MATTER OF AN APPLICATION BY WILLIAM DUDLEY KAVANAGH FOR LEAVE TO ISSUE A PROCEEDING

Re Kavanagh's Application [2003] HCA 76

10 December 2003

H3/2003

ORDER

Application for leave to issue a proceeding dismissed.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Kavanagh's application

High Court – Practice and procedure – Leave to issue proceedings – Applicant previously unsuccessful in application for special leave to appeal from State Supreme Court judgment – Applicant propounds for filing in the High Court motion claiming declarations invoking the International Covenant on Civil and Political Rights – Claims right to fair hearing violated in High Court and in State Supreme Court – Relevance of the International Covenant on Civil and Political Rights to Australian domestic law – Relevance in circumstances where the governing law is statutory and admits of no doubt or ambiguity – Whether propositions reasonably arguable.

International law – Relevance to Australian domestic law – International law of human rights – International Covenant on Civil and Political Rights – Status of unincorporated treaty – Influence of Covenant on development of common law and in the resolution of ambiguous legislation – Duty of Australian courts to obey and give effect to clear domestic law applicable to the case – Inadmissibility of process in the High Court seeking declaration and orders based on alleged effect of Covenant.

Constitution, covering cl 5, ss 75(i) and (iv), 76(i).

Judiciary Act 1903 (Cth), ss 35(1) and (2).

High Court Rules, O 58, r 4(3).

1. KIRBY J. On 19 August 2003, Hayne J, acting pursuant to O 58 r 4(3) of the High Court Rules, directed the Registrar of this Court not to issue a notice of motion presented by Mr William Kavanagh ("the applicant") without the leave of a Justice first being obtained. 2. In accordance with the direction of Hayne J, on 19 September 2003 the applicant presented an ex parte application for leave to issue process, supported by an affidavit sworn by him. His documents were accepted for filing. In accordance with the direction of Hayne J, they have been referred to me, as duty judge, to consider whether leave should now be given to the applicant to issue the propounded proceeding.