In the Matter of An Application BY Svetlana Tkachenko for Leave to Appeal

IN THE MATTER OF AN APPLICATION BY SVETLANA TKACHENKO
FOR LEAVE TO APPEAL
[2013] HCASL 1
A26/2012

On 7 June 2012, Crennan J made a direction pursuant to r 6.07 of the High Court Rules that the Registrar refuse to accept an application for special leave to appeal without the leave of a Justice first had and obtained.
On 15 August 2012, Hayne J refused the applicant leave. His Honour noted that the applicant sought special leave to appeal from a decision of a single Justice of the Supreme Court of South Australia, Gray J. Gray J allowed an appeal by the applicant against the sentence imposed on her for riding a bicycle without an approved helmet and set aside the conviction recorded against her. Hayne J noted that by the proposed application for special leave to appeal the applicant sought an order that "the requirement to wear bicycle helmets is suspended or repealed until there is a new helmet standard with adequate sun protection". The application sought no other order. Hayne J found that the court had no power to make an order of the kind sought and that the proposed application was vexatious.
This is an application for leave to appeal against Hayne J's order refusing leave.
The applicant asserts that this Court has the power of judicial review over statutes. That is so. But it is so only where the statutes exceed legislative power. The papers which the applicant has filed do not demonstrate any excess of power here.
Accordingly, the application must be dismissed.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 February 2013
V.M. Bell

CaseChat Overview and Summary

The application by Svetlana Tkachenko seeks leave to appeal against a decision of Hayne J, who had previously refused her special leave to appeal a decision by Gray J, a single Justice of the Supreme Court of South Australia. Gray J had allowed an appeal against a conviction for riding a bicycle without an approved helmet and set aside the conviction. Tkachenko sought to appeal Hayne J's decision on the basis that the requirement to wear bicycle helmets should be suspended or repealed until there was a new helmet standard with adequate sun protection. Hayne J found that the court lacked the power to make such an order and that the proposed application was vexatious.

The central legal issue in this case was whether the High Court had the authority to review and potentially alter the legislative requirement to wear bicycle helmets. Tkachenko argued that the Court had the power of judicial review over statutes, but this power only extends to cases where the statutes exceed legislative power. The Court had to determine if the legislative requirement to wear bicycle helmets exceeded legislative power, which Tkachenko did not demonstrate in her application.

The Court found that Tkachenko's application did not demonstrate any excess of legislative power and, as a result, the Court did not have the authority to review the legislative requirement. The Court concluded that the proposed application was vexatious and dismissed the application for leave to appeal. The Court directed the Registrar to draw up, sign, and seal an order dismissing the application. The reasoning and outcome underscore the limited scope of judicial review over legislative mandates unless there is a clear demonstration of an excess of legislative power.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established