Ruling assumes retirement date on court website was wrong due to other public records
A single justice of Australia’s High Court denied an ex parte application alleging that a former judge who had dismissed the applicant’s proceedings had ceased to be a judge of the Federal Circuit Court of Australia by that date.
In the matter of an application by Lim for leave to issue or file, [2025] HCASJ 39, the applicant commenced proceedings asserting contraventions of the Fair Work Act 2009 (Cth) against her ex-employer. On 31 March 2021, Judge Timothy Heffernan dismissed those proceedings.
Charlesworth J denied the applicant’s application seeking an extension of time to appeal those orders on 27 October 2022 and directed the applicant to pay the respondents’ costs on 2 March 2023. On 30 October 2024, a Federal Court registrar issued an order fixing those costs.
In an interlocutory application, the applicant requested a review of the registrar’s order. Last 17 March, Charlesworth set aside the registrar’s order and decreased the amount of the respondents’ costs.
On 2 September, the applicant applied for constitutional writs and other relief against the Federal Court of Australia, Heffernan as a former judge of the Federal Circuit Court of Australia, and Charlesworth as a justice of the Federal Court of Australia.
On 4 September, Gordon J directed the registrar to decline to issue or file the writ without a justice’s prior leave under r 6.07.2 of the High Court Rules 2004 (Cth). On 11 September, the applicant brought an ex parte application to seek such leave under r 6.07.3 of the High Court Rules, supported by an affidavit sworn by the applicant on 8 September.
The applicant alleged that Heffernan’s dismissal of her proceedings and Charlesworth’s denial of her application for an extension of time to appeal and cost order involved breaches of constitutional duties of impartiality, independence, and institutional integrity, as well as systemic bias, procedural fairness denials, failures to give adequate reasons, or failures to address pertinent matters.
The applicant argued that Heffernan delivered his 31 March 2021 judgment after he had ceased to be a Federal Circuit Court judge. She noted that an extract from the Federal Circuit Court’s website stated Heffernan’s retirement date as 1 April 2020.
Justice Jayne Jagot of the High Court of Australia dismissed the ex parte application seeking leave to issue or file an application for a constitutional or other writ.
Jagot ruled that the proposed application was manifestly untenable and potentially abusive of the court’s process, considering the unexplained lapse of time since Charlesworth J’s denial of the application for an extension of time for leave to appeal.
Jagot inferred that the court’s website extract was inaccurate, as other public records suggested that Judge Heffernan's retirement date was later than 1 April 2020.
Jagot assumed that the applicant exclusively relied on the website extract for this additional ground, given that she only tried to file the present application on 2 September, even though Charlesworth J dismissed the application on 27 October 2022.
Jagot questioned why the applicant did not raise this issue earlier or attempt to quash Heffernan’s orders within the six months following the orders, as required under r 25.02.2(a) of the High Court Rules.
According to Jagot, if the applicant could offer further incontrovertible evidence establishing that Heffernan had retired as a Federal Circuit Court judge when he issued the 31 March 2021 judgment:
