Federal Court of Australia

Culleton v State of Western Australia [2026] FCA 699

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 27 April 2026 be dismissed.

2.    The applicant pay the respondent’s costs of the interlocutory application fixed in the sum of $275.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

FEUTRILL J:

1    In November 2024 the applicant filed a writ of summons in the High Court by which he seeks declarations to the effect that s 56(4) and (or) s 58 and s 67 of the Emergency Management Act 2005 (WA) and the Quarantine (Closing the Border) Directions (WA) are invalid by operation of s 92 of the Constitution.

2    In Palmer v Western Australia [2021] HCA 5; 272 CLR 505 the High Court concluded that s 56 and s 67 of the Emergency Management Act were valid in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic, and the making of the Directions under those provisions did not otherwise raise a constitutional question. That is, the High Court determined that the relevant sections of the Emergency Management Act and the Directions were not invalid due to any inconsistency with s 92 of the Constitution. The applicant contends that Palmer was wrongly decided and, at least in part, he wants to relitigate questions of law the High Court authoritatively determined in that judgment.

3    Section 44(1) of the Judiciary Act 1903 (Cth) provides that, other than certain matters within the exclusive jurisdiction of the High Court, any matter that is pending before the High Court may be remitted by the High Court to any federal court that has jurisdiction with respect to the subject matter and the parties. Section 39B(1A)(b) of the Judiciary Act provides that the original jurisdiction of this Court includes jurisdiction in any matter arising under the Constitution, or involving its interpretation. In accordance with these provisions of the Judiciary Act, by an order of a judge of the High Court made in April 2025 the High Court proceeding was remitted to this Court. Evidently, there was no attempt to appeal from that order in the High Court.

4    The applicant contends that this Court does not have jurisdiction because, in essence, it is bound to follow and apply Palmer.

5    The applicant filed an interlocutory application on 29 May 2025 by which, amongst other things, he sought to challenge the jurisdiction of this Court. That application was not pursued.

6    The applicant then filed another interlocutory application on 14 January 2026 by which again, amongst other things, he sought to challenge the jurisdiction of this Court.

7    On 18 February 2026 orders were made to facilitate a final hearing and determination of five discrete issues raised in the proceeding. The hearing of those issues is provisionally listed on 16 June 2026.

8    Amongst other things, the interlocutory application filed on 14 January 2026 is also listed to be heard immediately before the final hearing. Further, one of the discrete issues for determination is whether this Court has jurisdiction to hear and determine all issues raised in the proceeding.

9    The applicant filed yet another interlocutory application on 27 April 2026. In that application the applicant seeks orders compelling the respondent to state its position and make admissions or concessions with respect to certain aspects of the applicant’s challenge to the jurisdiction of this Court. The applicant also seeks an order in the nature of habeas corpus. That application, by oral and written submissions made today, has been amended to include, in effect, an application to dismiss the proceeding for want of jurisdiction and an application otherwise to determine the question of jurisdiction before any other issues are determined in the proceeding.

10    The orders made on 18 February 2026 make provision for the applicant to file and serve any affidavits in relation to the issues for determination by 18 March 2026 and file and serve his written submissions by 19 May 2026. As far as the Court is aware, the applicant has not filed any affidavits and has not complied with the order to file written submissions. Otherwise, the orders made on 18 February 2026 were varied on 29 April 2026 to make provision for the respondent to file and serve its written submissions on 9 June 2026.

11    It is to be expected that the respondent will make clear its position on the issue of the jurisdiction of this Court in its written submissions to be filed on 9 June 2026.

12    Section 37M of the Federal Court of Australia Act 1976 (Cth) provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively, and efficiently as possible. The overarching purpose includes the objective of the efficient use of judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The civil practice and procedure provisions must be interpreted and applied and any power conferred or duty imposed by them must be exercised or carried out in a way that best promotes the overarching purpose.

13    Consistently with the overarching purpose and those objectives, the five issues for determination in the proceeding have been provisionally listed for hearing on 16 June 2026, and case management directions made to facilitate the determination of those issues. Having regard to the overarching purpose of the civil practice and procedure provisions, it is unnecessary and inappropriate to make any order compelling the respondent to provide the applicant with a separate statement of its position as it will merely result in duplication, increased cost and inefficiency. For similar reasons, in my estimation, the question of jurisdiction can be determined efficiently and effectively at the same time as the five issues that are listed for determination on 16 June 2026.

14    Otherwise, the applicant contends that he has been deprived of his liberty in the form of a right to obtain relief in the High Court. He claims that he is entitled to an order in the nature of habeas corpus because ‘his right has been detained’, in substance since the proceeding was remitted to this Court.

15    The application for an order in the nature of habeas corpus is misconceived. The writ of habeas corpus ad subjiciendum is a prerogative writ. It is a writ that requires an authority to bring a person detained to court and demonstrate the detention is lawful. The relevant liberty in question and of which the legal authorities speak is the personal liberty and freedom of the person detained. Thus, the writ is concerned with the fundamental common law right and lawfulness of the executive’s interference with that right. As the applicant is neither in prison nor subject to any other form of deprivation of personal liberty, the writ has no application whatsoever.

16    As to the interlocutory application for dismissal of the proceeding for want of jurisdiction, that is a matter that is already the subject of an existing interlocutory application and is one of the issues that has been identified for determination on 16 June 2026. Again, in accordance with the overarching purpose and s 37M of the Federal Court Act, it is unnecessary and inappropriate to deal with that separately and before the other issues.

17    For these reasons, the interlocutory application filed on 27 April 2026 is dismissed.

Associate:

Dated:    4 June 2026