Mao, In the matter of an application for leave to issue or file

[2023] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S63 of 2023

In the matter of -
an application by YOUHUA MAO for leave to issue or file

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 19 JUNE 2023, AT 9.27 AM

HER HONOUR: Matter number S63/2023 is an ex parte application for leave to issue or file a writ of summons. Pursuant to rules 6.07.2 and 13.03.1 of the High Court Rules 2004 (Cth), I direct that the ex parte application for leave to issue or file the writ of summons be determined without an oral hearing. The ex parte application for leave to issue or file the writ of summons is refused.

I publish my reasons. I direct that the reasons as published be incorporated into the transcript. In matter number S63/2023, the order of the Court is:

1.The ex parte application for leave to issue or file a writ of summons is refused.

I publish that order.

This is an ex parte application for leave to issue or file a writ of summons. On 5 June 2023, Gleeson J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the writ of summons was not to be issued or filed without the leave of a Justice first had and obtained by the applicant. The application is supported by an affidavit affirmed on 7 June 2023.

I have read the applicant’s affidavit, which also effectively includes the applicant’s submissions. The proposed writ of summons lists one defendant: the Commonwealth of Australia. That document is stated to relate to a “set of superannuation law” comprising the Superannuation Guarantee (Administration) Act1992 (Cth) and the Superannuation Industry (Supervision) Act 1992 (Cth) (“the impugned law”) and would, if filed, seek to challenge, among other things, the constitutional validity of the impugned law.

The document records that, since 2016, the applicant has unsuccessfully taken action in this Court to contest the constitutional validity of the impugned law on multiple occasions[1].
[1] See, eg, In the matter of an application by Youhua Mao for leave to issue or file (unreported, High Court of Australia, 17 August 2022); Mao, In the matter of an application for leave to issue or file [2023] HCATrans 8.

The document does not disclose an arguable basis for relief, is an abuse of the process of the Court and otherwise does not comply with the requirements of Pt 27 of the High Court Rules.

Pursuant to rr 6.07.2 and 13.03.1 of the High Court Rules, I direct that the ex parte application for leave to issue or file the writ of summons be determined without an oral hearing. The ex parte application for leave to issue or file the writ of summons is refused.

Adjourn the Court, please.

AT 9.28 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

This matter concerned an ex parte application by Youhua Mao for leave to issue or file a writ of summons in the High Court of Australia. The proposed writ sought to challenge the constitutional validity of certain superannuation laws, specifically the *Superannuation Guarantee (Administration) Act 1992* (Cth) and the *Superannuation Industry (Supervision) Act 1992* (Cth).

The primary legal issue before the Court was whether to grant the applicant leave to issue or file the writ of summons. This required the Court to consider the applicant's supporting affidavit and submissions, and to determine if there was an arguable basis for the relief sought, whether the application constituted an abuse of process, and whether it complied with the relevant High Court Rules.

The Court, applying rules 6.07.2 and 13.03.1 of the *High Court Rules 2004* (Cth), determined that the application should be decided without an oral hearing. Having reviewed the applicant's materials, the Court found that the proposed writ did not disclose an arguable basis for relief, constituted an abuse of the process of the Court, and failed to comply with the requirements of Part 27 of the High Court Rules. The Court noted that the applicant had unsuccessfully pursued similar challenges to the constitutional validity of the same legislation on multiple occasions since 2016.

Consequently, the ex parte application for leave to issue or file the writ of summons was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established