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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M306 of 1995
In the matter of -
An application for writs of certiorari against THE HONOURABLE JUSTICE GAUDRON and DEPUTY REGISTRAR MUSOLINO
Respondents
Ex parte -
LEN LINDON
Plaintiff
Office of the Registry
Melbourne No M44 of 1995
B e t w e e n -
LEONARD JOHN LINDON
Applicant
and
HON J.D.C. KERR MP, MINISTER FOR JUSTICE
First Respondent
HON M.H. LAVARCH MP, ATTORNEY-GENERAL
Second Respondent
MICHAEL ROZENES, QC, DPP
Third Respondent
ASHLEY HEATH
Fourth Respondent
COMMONWEALTH OF AUSTRALIA
Fifth Respondent
Summons
Office of the Registry
Melbourne No M303 of 1995
B e t w e e n -
LEN LINDON
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Ex parte summons
Office of the Registry
Melbourne No M305 of 1995
B e t w e e n -
LEN LINDON
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Ex parte summons
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 28 NOVEMBER 1995, AT 10.15 AM
Copyright in the High Court of Australia
HIS HONOUR: And an affidavit?
MR LINDON: A one page affidavit?
HIS HONOUR: Yes.
MR LINDON: Then there is the application which has been stamped and then there is my affidavit in relation to that application dated 9 November and exhibits thereto.
HIS HONOUR: You applied to her Honour - that is not accurate, is it?
MR LINDON: No, no. My application to the Court appears in exhibit 1, document No 11, which is a page - - -
HIS HONOUR: What happened was under Order 58 rule 4(3). Have you got the Court Rules there?
MR LINDON: I am familiar with the rules.
HIS HONOUR: I will read it on to the transcript.
If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceedings, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it.
And her Honour gave a direction directing that the process not be issued without the leave of a Judge.
MR LINDON: In fact I believe his Honour Justice Toohey - - -
HIS HONOUR: It was Justice Toohey, yes, you are quite right.
MR LINDON: We are slightly out of chronological order in this, sir. Would you like me to take you - - -
HIS HONOUR: No, just pardon me a minute. What you seek to restrain by the certiorari is determinations by Justice Gaudron obviously.
MR LINDON: That is where it started, yes.
HIS HONOUR: What you now need, because of the steps taken by Justice Toohey, is an order from me this morning that you have leave to issue that application for prerogative relief against Justice Gaudron, that is what it comes to.
MR LINDON: That is correct, sir, and I should just point out that I am asking seeking leave ex abundant cautela in the original matter in which Justice Gaudron made her decision.
HIS HONOUR: We will come to that, but I can only do one thing at a time.
MR LINDON: It was just that I was informed that that might be relevant to the actual application for certiorari.
HIS HONOUR: There is a more fundamental problem which is this - what is the source of the jurisdiction to grant certiorari in any event at all?
MR LINDON: In relation to a High Court Judge?
HIS HONOUR: In relation to anybody out of this Court. That is the first step, certiorari not being mentioned in section 75(v) of the Constitution.
MR LINDON: I will just reach for my rules. I must say I have not even directed my mind to that point, given that the pro forma for an application to commence proceedings for certiorari is part of the CCH High Court Practice and I understood the Court had jurisdiction in the matter of prerogative writs, mandamus, prohibition, certiorari - - -
HIS HONOUR: That is the first step. You have to look at section 75(v). Have you got the Constitution there?
MR LINDON: I am familiar with it. I will just find my copy of section 75.
HIS HONOUR: Take a minute to find it.
MR LINDON: Thank you. I have prepared many points to meet but I must say - - -
HIS HONOUR: It is a fundamental one.
MR LINDON: Absolutely, but it seemed to be beyond - I looked at a case involving his Honour Justice Brennan as he then was - - -
HIS HONOUR: We will come to that in a minute, but that is a second problem.
MR LINDON: But that is why I assumed it was not really an issue, but let me just - from memory there is something in my annotated Act or rules that - - -
HIS HONOUR: There is a further problem which is the one you adverted to and it is illustrated by the authorities referred to in Muldowney [1993] HCA 53; 67 ALJR 837 at 839, which you mention, which is that jurisdiction is not conferred whereby the Court issues prerogative writs directed to itself.
MR LINDON: I understand that.
HIS HONOUR: Which is a common sense idea, really. But there are authorities referred to there which bear out that proposition, in particular the Federated Engine Drivers 22 CLR 117. That is a joint judgment some 80 years ago now of the Full Court which makes that point.
MR LINDON: Am I correct in thinking that the question was not finally decided in that case? That is the case of Justice Brennan, as he then was. Is that the case you are referring to?
HIS HONOUR: Re Brennan: ex parte Muldowney, yes. It did not have to be decided there. The question was whether the Court was the Court of Disputed Returns but that is not this case.
MR LINDON: The question was not actually reached, did not have to be dealt with in that matter.
HIS HONOUR: It has been dealt with in 1916, that is what I am saying. Sir Anthony Mason's judgment is convenient because there is a footnote that has the cases in it. That, it seems to me, is a fatal problem to this application against her Honour. Is there anything that you can say to persuade me to the contrary? That is what it comes to, I think.
MR LINDON: I had not read the case that way. My understanding of the Re Brennan Case was that - - -
HIS HONOUR: I am not inviting you to think about that. I am inviting you to think about 22 CLR.
MR LINDON: I have not - - -
HIS HONOUR: Do you want time to look at it?
MR LINDON: If I could take five or ten minutes.
HIS HONOUR: I really cannot spend vast amounts of time on this, you know. It is an indulgence you are being given. It is 22 CLR at 117 and another decision also, 22 CLR at 453. Now, I will take a short adjournment to allow you to look at that. While you are doing that you might think about this too, Mr Lindon: what seems to me of more imperative importance to you personally is the outcome of your litigation stemming from the Federal Court proceedings and you have an application for special leave on foot, do you not?
MR LINDON: Yes.
HIS HONOUR: You have put on a written argument as you are required to do under Order 69A. Now, one of your applications this morning is to do two things: to stay the determination of that application for special leave, which is not really the sense of the matter, because there is no order to stay. What you really want, I think, is your second branch which is leave to file a supplementary written case in aid of that.
MR LINDON: I see, yes. Just in relation to that, sir, you will see in that written case that I foreshadowed - there was some contradictory advice from the Registry about whether I ought seek a separate declaration on those matters or whether they could be raised properly in a special leave application.
HIS HONOUR: That is the question. Where is the supplementary written case? Is it reduced to writing yet? Have you got a draft? You have got lots of files but - - -
MR LINDON: I am a bit confused. Are you referring to the supplementary written case referred to in my affidavit in matter No 305? Is that - - -
HIS HONOUR: No, that is not before me. What I have before me is a summons.
MR LINDON: There is a summons dated 24 November issued by the Court, an ex parte summons in matter No 305 seeking - - -
HIS HONOUR: I will get there eventually. It is in matter M44 of 1995.
MR LINDON: Yes, sir.
HIS HONOUR: It is a summons that was filed on 15 November.
MR LINDON: Yes, sir. And in my affidavit thereto you will see at paragraph 7 that I incorporate the additional written case that I wish - - -
HIS HONOUR: All right.
MR LINDON: And all that it is, as you will see, is I sought to add three reasons, numbered 7, 8 and 9, in addition to the - and while we are there, sir, I might say that, at the top of page 5, (2) [Reason 8], I will not be proceeding with that.
HIS HONOUR: Page 5?
MR LINDON: Yes, sir. The beginning of page 4, I will just take you there, I seek to add three further matters called [Reason 7], [Reason 8] and [Reason 9]. Today I am abandoning the reason marked "[Reason 8]" for a reason which I will explain to your Honour but I am just proceeding - - -
HIS HONOUR: You do not need to explain it.
MR LINDON: I just did not want any adverse comment made about why I am abandoning it.
HIS HONOUR: I am trying to get on. There are a lot of things to be done, you know.
MR LINDON: I appreciate the time the Court is making available to me in this matter. They are very important issues to many people in this country.
HIS HONOUR: Now reason 7 and reason 9, they are the ones you want.
MR LINDON: Yes.
HIS HONOUR: That can be disposed of now, I think.
MR LINDON: If we are dealing with this matter I would like to say that in relation to reason 7, which concerns the Australian Institute of Judicial Administration, there is some correspondence which I wish to incorporate into my written case as part of reason 7. You will see that some matters are referred to in that long paragraph called "[Reason 7]" but there is also further correspondence from the Institute of Judicial Administration that, in my submission, is important and ought be included. I have copies of that correspondence here.
HIS HONOUR: I do not need to see that.
MR LINDON: You do not think the content of that is important in the - - -
HIS HONOUR: I am going to give you leave to present it.
MR LINDON: Sorry.
HIS HONOUR: As I say, I am trying to get on. Just sit down for a minute, Mr Lindon.
MR LINDON: Can I ask your associate to pass me that volume of the CLRs while we are doing this. It might be an effective way of proceeding.
HIS HONOUR: Do you have a copy of Re Brennan there?
MR LINDON: No, I do not.
HIS HONOUR: Have a look at that as well, the footnote.
MR LINDON: Thank you for that. Shall I deal with that matter now?
HIS HONOUR: I will come back to it.
Now, in matter No M44 of 1995 in which there is a summons filed on 15 November 1995, supported by an affidavit affirmed by Mr Lindon on 9 November 1995, I direct that the applicant be at liberty up to and including 14 December 1995 to supplement the written case referred to in Order 69A rule 3(1)(f) by the material referred to as reason 7 and reason 9 in the applicant's affidavit affirmed 9 November 1995, together with the materials referred to in those reasons.
MR LINDON: And, with respect, your Honour, there is some further correspondence arising out of - that is what I was referring to. You see I refer to the AIJA and my letter to them is exhibited to the affidavit in exhibit 3, and there has now been further correspondence which I believe is - - -
HIS HONOUR: Together with the materials referred to in those reasons and further correspondence - - -
MR LINDON: Dated 23 and 24 November between the AIJA and myself.
HIS HONOUR: - - -between the applicant and the Australian Institute of Judicial Administration. Otherwise the summons filed 15 November in matter M44 of 1955 is dismissed.
MR LINDON: I did not quite understand, although you told me why it was not, as it were, a competent order to be seeking - I did not quite follow the reasoning.
HIS HONOUR: There is no order to stay. One stays orders. There is no order against you. The Court is merely considering your application.
MR LINDON: I thought one stayed proceedings and that that was a proceeding - - -
HIS HONOUR: But there is no proceeding to stay.
MR LINDON: Is not my application for special - - -
HIS HONOUR: It is not going to happen, Mr Lindon. We are just talking about fantasy. The Court is not going to decide your application for special leave in the light of the direction that has now been made.
MR LINDON: I am not being smart or - - -
HIS HONOUR: I am not suggesting you are.
MR LINDON: But when you say it is not going to happen, I am genuinely confused. What I am seeking - there are proceedings which were commenced in this Court on 7 July by filing an application for special leave.
HIS HONOUR: That is right. That has not been disposed of. You have been given liberty to supplement the materials for that application. Obviously courts are not going to dispose of it, that order having been made.
MR LINDON: Right. The other thing I was seeking in that order, sir, was that pending the issue of a writ I referred to in order 1, it is not merely - - -
HIS HONOUR: I will not make that order, Mr Lindon.
MR LINDON: I understand that is your clear intention, sir; I am just trying to understand - there is a slight confusion in my mind as to whether that is as a matter of law, as a matter of discretion. It seems to me the Court does have power to stay proceedings pending the issue of other proceedings, particularly with declarations.
HIS HONOUR: Look, if you want to withdraw your application, you withdraw it. But if you make it, it will be disposed of and it will be disposed of with the supplementary material you want to put on.
MR LINDON: Yes, sir, but - - -
HIS HONOUR: I am not sitting here to debate - - -
MR LINDON: I am not debating; I am just not sure if you understand - - -
HIS HONOUR: I understand perfectly.
MR LINDON: You understand that it refers to a writ, not the supplementary - - -
HIS HONOUR: I realise that. You need leave to issue that writ, too.
MR LINDON: Right. Oh, I see.
HIS HONOUR: So that is the first of these matters, M44. Now what about this certiorari. Is there any answer to those authorities which bind me? It is not a matter of discretion, they bind me.
MR LINDON: It would seem from these authorities that you have put to me that a decision of a Justice in chambers to whom a matter under Order 58 rule 3 has been referred is a non-appellable decision. That is my reading - - -
HIS HONOUR: Certiorari is not about an appeal. That is what I am trying to suggest to you. Certiorari and prerogative relief is not an appeal. it is a very special remedy that is all about restraining decisions made with miscontruction of the ambit of jurisdiction. It is not about making mistakes inside the area of jurisdiction. You complain about a mistake inside the area of jurisdiction, the law gives appeal structures. The appeal structure may require leave, it may not, et cetera, et cetera. But you want prerogative relief. Those cases say that in house, no prerogative relief.
MR LINDON: Even if I plead jurisdiction, an excess of jurisdiction?
HIS HONOUR: That is right.
MR LINDON: And that the correct procedure, therefore, would be to seek leave to appeal, I suppose, from a Justice in chambers.
HIS HONOUR: That would then catch up - I am not sure about this, I have not looked at it - but it would catch up section 34 of the Judiciary Act 1995 , I think, which you would have to look at, which would require leave and then you would be back with Order 69A, I think.
MR LINDON: Special leave, you think. The point is interlocutory, yes.
HIS HONOUR: Order 69A talks about leave and special leave, I think.
MR LINDON: Right.
HIS HONOUR: It is not my function to run a tutorial, you know.
MR LINDON: I appreciate that, sir, but you will see that - - -
HIS HONOUR: I have seen too many of them in my life.
MR LINDON: You may notice I have actually referred to your article in Law and Contemporary Problems about the - it probably has come back to haunt you in this matter. Just one last thing on this matter, sir, you will see that what I have done in this application, which I see is misconceived for the reasons you have pointed out to me, is that I need for my application to the Human Rights Committee, which I have exhibited in the material - have you actually seen the material exhibited?
HIS HONOUR: Yes.
MR LINDON: I need to say I have exhausted domestic remedies and my understanding, sir, as I have stated in that communication, was that as far I know leave has never been given to issue process once that stamp goes on the documents under 58.3. So to all intents and purposes I have probably exhausted domestic remedies - - -
HIS HONOUR: I would have thought so.
MR LINDON: - - -and that this application before you today, sir, should be seen in that light, that there is no question now for the Human Rights Committee, that I have exhausted domestic remedies and that although there is some question about whether leave or in fact special leave ought be sought, it would appear to be a futility.
HIS HONOUR: So in matter M306 what is before me is the consequences of the direction made by Justice Toohey and his Honour directed under Order 58 rule 3 that the application for prerogative relief against Justice Gaudron not issue without leave of a Justice. I am refusing you that leave on the ground of futility in the light of those authorities in 22 CLR.
MR LINDON: In that case, sir, it may well be that Justice Toohey need not even have made that order.
HIS HONOUR: That may be so. I am making it now, so it is disposed of. Now that leaves us with 303 and 305, does it not?
MR LINDON: Your Honour, just before you move away from 306, you will see I also sought certiorari against the Deputy Registrar.
HIS HONOUR: It is the same principle.
MR LINDON: Is it?
HIS HONOUR: It is the same in house operation.
MR LINDON: Even though she is acting administratively and not judicially?
HIS HONOUR: I think so, yes.
MR LINDON: I certainly do not abandon in relation to her, sir.
HIS HONOUR: I have given you my decision.
MR LINDON: Thank you, sir.
HIS HONOUR: Now, looking first at M303, there is a writ, is there not, which is endorsed by Justice Gaudron?
MR LINDON: That is correct, sir.
HIS HONOUR: You seek declaratory relief against the Commonwealth?
MR LINDON: Yes.
HIS HONOUR: The declarations you seek are set out on page 2, is that right?
MR LINDON: Yes, sir.
HIS HONOUR: Now, the question is whether an action for those declarations is frivolous or vexatious - which are not used in laymen's language, which are technical terms - because they would be bound to fail. That is what it would come to, I think. The question really is would this Court ever make declarations of that width and generality against the Commonwealth at the suit of any particular citizen, any citizen.
MR LINDON: Perhaps a citizen with a special interest, to satisfy the standing test, sir, because in my statement of claim - - -
HIS HONOUR: That would be one question. Another question would be would any court ever make declarations of that width and generality?
MR LINDON: That is right, and that must be decided in the circumstances of each case. It is not only a - - -
HIS HONOUR: No, I think ever, in this case.
MR LINDON: With respect, sir, I believe that that decision has to be supplemented by material - I will refer to the - - -
HIS HONOUR: It is just a question of looking at them on their face.
MR LINDON: Yes, but there is an annotation to the Butterworths Rules which suggests that in deciding whether, on its face, they fall that way, that one has to look at other material and I would say that includes the statement of claim and includes - - -
HIS HONOUR: Yes, have you got a statement of claim?
MR LINDON: Yes, that is endorsed on the writ. That is at page 3 onwards.
HIS HONOUR: I will look at that.
MR LINDON: It does not claim jurisdiction, unfortunately.
HIS HONOUR: You assert jurisdiction under section 75(iii), I suppose?
MR LINDON: It is a matter against the Commonwealth, so - - -
HIS HONOUR: Now there is this proceeding before the International Court of Justice. Is that concluded yet, do you know?
MR LINDON: No, sir.
HIS HONOUR: Is the hearing concluded?
MR LINDON: The hearing concluded on 17 November, judgment expected in April next year, but that is just anticipated.
HIS HONOUR: That would establish the international law on the matter, would it not? It will certainly indicate what - is it asserted that it is customary international law that they are declaring?
MR LINDON: Yes, that is what Australia's position is.
HIS HONOUR: But it comes before the International Court on a reference from the UN, does it not?
MR LINDON: Yes, sir, and from the World Health Organisation too.
HIS HONOUR: From UN agencies?
MR LINDON: Well, the UN General Assembly.
HIS HONOUR: Yes, and the World Health Organisation, which is an agency.
MR LINDON: Yes, that is right. The question is slightly different - the declarations I have sought are in the same terms as the advisory opinion sought from the World Court, so I have adopted - - -
HIS HONOUR: Yes.
MR LINDON: You appreciate that?
HIS HONOUR: But what I wanted to suggest to you is - - -
MR LINDON: I think I see what you are going to say, which is we should wait till it is - and then we will know.
HIS HONOUR: Yes.
MR LINDON: My point is this: you will remember this Court's decision in Polyukhovich where Justice Toohey and Justice Brennan, I think, both dealt specifically with the fact that at some time since World War II, but definitely by 1991 when the decision came down, customary international law recognised that genocide was a crime against humanity and, in Justice Toohey's view, a crime of universal jurisdiction. My point is simply this: as at 30 October Australia has been seen to recognise what the state of international customary law is, namely that as stated there, and my point is that international customary law has been that way for a long time but Australia cannot now be taken to be denying it. And the relevance of that, sir, is that it is not frivolous or vexatious within the technical meaning of the term because any actual proceedings in terms of a defence being entered by the Commonwealth, notices to admit, notices to produce and so on, would demonstrate that Australia, the Commonwealth, has recognised that - by the way, Senator Evans is very clear in his 30 page legal submission to the Court to say that whatever the position was before, as at 30 October - and I should say, sir, that Dr Griffith said exactly the same words - he said our position is, shortly, that customary international law now makes illegal - I will give you the exact citation - - -
HIS HONOUR: Do not worry about that. These claims for declarations, do they reflect any questions that are before the International Court?
MR LINDON: They certainly reflect the questions, sir.
HIS HONOUR: Specifically?
MR LINDON: Yes, I think that is quite true, except - - -
HIS HONOUR: Question 3 could not possibly do that, could it?
MR LINDON: Except what I have done is adapt them - as your Honour will be aware, there is a current contemporary debate in the community about municipal law and incorporation into municipal - - -
HIS HONOUR: Yes, I know.
MR LINDON: Okay. So what I am attempting to do is to participate in that legal debate and say, well, if these questions are being asked - and they are serious questions, not vexatious or frivolous or anything - they are serious questions before the World Court, given its charter to give an advisory opinion, then they are serious questions before this Court. So I really rely on the World Court to corroborate that these are serious legal questions that cannot be dismissed as political,right?
HIS HONOUR: All right. What I was suggesting for your consideration is to stand over this application until the International Court has given its decision.
MR LINDON: Why, because it would be a waste of the Court's time deciding this matter when it has not been decided by the World Court?
HIS HONOUR: Or alternatively, I may decide to give you leave to issue this, but you would be met immediately with a strike-out application by the Commonwealth, I suspect.
MR LINDON: That is true. But the law on striking out under Order 20 rule 29 is very clear that the power should be used sparingly, with the greatest care and circumspection, only in the clearest of cases - that is Dyson v The Attorney-General. I do not need to take you - it is interesting, sir, that there are several powers set out in the rules - and I will take you to them one by one, if you like - where the Court does have power to strike out pleadings and to stay proceedings.
HIS HONOUR: That is a question that would be come to when it was come to.
MR LINDON: Exactly. And I have cited some authorities to the Court that they should stay out of the arena and that they should - I will take you to those in a minute.
HIS HONOUR: There are a number of decisions of the Court which would suggest you would have difficulties in resisting an application by the Commonwealth. You may already know them but I will give you the references now.
MR LINDON: Were it to be made, sir?
HIS HONOUR: Yes. The first one is Ingram v The Commonwealth 54 AJLR 395. The second is Simsek v McPhee 148 CLR 636. On the question of standing there is a case Tasmanian Wilderness v Fraser [1982] HCA 37; 153 CLR 270 at 274.
MR LINDON: Yes, I come prepared to meet those principles.
HIS HONOUR: I do not want to debate that today.
MR LINDON: Also, in my submission, in considering whether on its face these pleadings fall within Order 58 rule 3 there is some evidential material that the Court can take notice of under the Evidence Act, the common knowledge provision, section 144. I also say that there is an argument of fiduciary obligation in relation to the Court's decision here. Can I address you on those matters very briefly?
HIS HONOUR: No, I will grant you the leave, if that is what you wish now, in respect of matter M303. It will be then for the Commonwealth to move, if it decides to move, and the Court can make its decision at that later stage. So pursuant to Order 58 rule 4(3) I give leave to issue the writ bearing the endorsement by Justice Gaudron of 2 November 1995. And that starts the proceeding.
MR LINDON: That is right. And that endorsement has to stay on the writ, does it not?
HIS HONOUR: You can discuss that with the Registry. I do not know about that.
MR LINDON: Can I make an application, sir, now that leave has been given that the writ I serve on the Commonwealth no longer needs to bear that endorsement?
HIS HONOUR: Yes. You file a fresh writ.
MR LINDON: Thank you.
HIS HONOUR: Now, that leaves M305. Now, then, this does seem to me - - -
MR LINDON: I just need a moment, sir.
HIS HONOUR: You have an ex parte summons here dated 24 November.
MR LINDON: Yes, sir.
HIS HONOUR: An affidavit.
MR LINDON: Yes, sir. A notice of a constitutional matter. Do you have that, sir?
HIS HONOUR: Yes, and there is a writ bearing an endorsement by Justice Toohey. Is there a statement of claim appended to the - - -?
MR LINDON: No, sir, there is not. Under the Rules you have, I think, 21 days from the issue of the writ to serve a statement.
HIS HONOUR: Yes. I was just wondering if there was, that is all. How do you say these matters are other than absolutely and clearly doomed to fail? It is as clear as might be; as clear as day.
MR LINDON: Sir, I urge you not to perhaps take that view without having heard me.
HIS HONOUR: Yes. That is what I am inviting you to do.
MR LINDON: Thank you, sir, because - - -
HIS HONOUR: In fact, I might take a short adjournment while you give it some - - -
MR LINDON: I have given it some thought but I will take a break, yes, thanks.
HIS HONOUR: Yes; give it 10 minutes quiet thought. I will adjourn until 11.15.
AT 11.06 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.19 AM:
HIS HONOUR: Yes, Mr Lindon.
MR LINDON: Your Honour has indicated that you thought it was just - I will not attempt to quote you exactly because I - - -
HIS HONOUR: I asked you to persuade me why it was not bound to fail.
MR LINDON: Right, but your Honour also made a sort of sweeping - - -
HIS HONOUR: Very clearly.
MR LINDON: - - - suggestion that you thought it was beyond any consideration.
HIS HONOUR: Yes. Well, that is what I am asking you to talk to me about - to persuade me to the contrary.
MR LINDON: Right. Now, am I persuading your Honour - just to be quite clear, that I am persuading you under 58 rule 4(3) which talks about abuse of process or vexatious or frivolous?
HIS HONOUR: That is right. Vexatious and frivolous and, therefore, an abuse of process because it is clearly bound to fail.
MR LINDON: Right, and once again, sir, I direct your attention to the power of the Court under Order 20 rule 29 to strike out pleadings on the application of a party and I direct your Honour's attention to Order 63 rule 6 which, I think, is the power to stay vexatious proceedings which is, I believe, a separate - - -
HIS HONOUR: Yes. I am worried about the particular order we are looking at right now.
MR LINDON: Well, that is right. I think it can properly be contrasted to that. Now, just because - and I think this is well accepted - a matter appears to be (a) political or, (b) a large issue, it is not beyond the power of this Court to deal with as long as it is a legal question, as long as it is justiciable. I think that is beyond doubt.
Now, this Court in Leeth's Case, for example, some Justices - I do not think I have to show that it has prospects of success, just that it is arguable, sir. Your Honour will be well aware that the so-called doctrine of equality is an arguable proposition before this Court.
HIS HONOUR: No, it is not. You have to reopen Leeth's Case and, in any event, if you are right about that, what is the doctrine of equality that you are talking about that you say flows from the minority judgments in Leeth's Case? I think that is where you are in trouble.
MR LINDON: I do not need - well, first of all, I say that was decided before other cases, before Theophanous' Case et cetera.
HIS HONOUR: But what is the relevant constitutional doctrine framed in some specific terms which applies to this action you seek to bring?
MR LINDON: That the power of the Governor-General to make appointments under section 72(i) of the Constitution, when read together with the judicial power set forth in Chapter III and in the light of the representative democracy principles set forth in Theophanous, Capital TV, other decisions of the Court - - -
HIS HONOUR: But what has representative democracy got to do with judicial appointments?
MR LINDON: It has a lot to do with that.
HIS HONOUR: What has it to do with Chapter III?
MR LINDON: Well, it has a lot.
HIS HONOUR: Bearing in mind in the United States that has been expressly held not to be so.
MR LINDON: Yes, we do not necessarily - I mean, our law and our system is quite - - -
HIS HONOUR: Just explain to me what Theophanous has to say about Chapter III and what Leeth has to say about Chapter III in its relation to the exercise of the Governor-General's power under section 72?
MR LINDON: Right. The notion of representative democracy, as I read Theophanous' Case and other decisions, rejects a notion of pure majoritarianism as an implication from the Constitution, that there is something more than pure majoritariansim in our system of government which was implicit in the Constitution. That flows from the fact that the Constitution basically recognises the sovereignty of the people, and the Attorney-General has recognised that the Constitution does so recognise the sovereignty of the people. I can take you to his words where he has acknowledge that, both at the Australian Rights - - -
HIS HONOUR: Assuming that to be so, what does it mean beyond a slogan or a statement, some political comment?
MR LINDON: It means, sir, and I - - -
HIS HONOUR: As a legal proposition, related to section 72. You have to be specific.
MR LINDON: I do, sir, but I also wish to put to you an argument which is that it is well documented that male, white Anglo-Celtic judges have not "heard" - have not "heard" arguments that have been put to them by and about women and other people of difference: activists, citizens, et cetera.
HIS HONOUR: But what has that got to do - that may be a matter for complaint.
MR LINDON: No, no. It is a matter of law, sir.
HIS HONOUR: You may be quite right but how does that get to section 72. You may be quite wrong, but how does it get to section 72 of the Constitution and when did it get to section 72? Has it always been like that?
MR LINDON: That is a question that could have been put in the Native Title - in Mabo's Case and Justice Dawson said, "No", it has not. That is a question that could have been put - - -
HIS HONOUR: That is not a constitutional case. It is not a case on the federal Constitution.
MR LINDON: No, but there is no doubt that Theophanous' Case is, Capital TV is.
HIS HONOUR: I know.
MR LINDON: And your Honour would have to be well aware of the debate in the community about the extent of this Court's law-making role. I think everyone accepts that it is a fairytale - as the previous Chief Justice said, "It is a fairytale to say courts do not make law. The question is when they do it, how they do it', et cetera, et cetera.
HIS HONOUR: They make law by applying existing principles to new situations. Now, that is making common law.
MR LINDON: With respect, they also make it by extending principles, sir.
HIS HONOUR: Look, we could sit here debating that all day but how does it feed back to section 72? I mean, I could understand if your proposition is - it might be wrong, too, if you said that it flowed out of representative democracy that half the members of Parliament at least had to be women but you do not put that.
MR LINDON: I do not put that, sir. What I do put - - -
HIS HONOUR: Representative democracy is about your representatives in Parliament making the laws. Right?
MR LINDON: That is right.
HIS HONOUR: Under Chapter I of the Constitution.
MR LINDON: Yes, sir. But at the same time - well, let me take you to another argument by way - - -
HIS HONOUR: I am putting it to you to illustrate that it is remote. Your immediate concern is remote from Theophanous, you see.
MR LINDON: Putting all that to one side, assuming that you are totally correct about all that, and of course you are, let us look at the separation of powers. Beyond doubt, the separation - the doctrine of separation of powers has been held to be implicit in the Constitution and in the Australian system of government.
HIS HONOUR: How to you align that with popular sovereignty?
MR LINDON: Can I come back to that question while I put my proposition, sir, because I think it - - -
HIS HONOUR: Yes. Why cannot 51 per cent of the people overthrow it?
MR LINDON: What is the referendum? I think it is more than 51.
HIS HONOUR: Exactly. So, does that not give some content to what popular sovereignty is about?
MR LINDON: Yes, sir.
HIS HONOUR: It is not a loose concept. It has to be looked at specifically in terms of the Constitution.
MR LINDON: That is right. Sir, let me put two things to you first of all. The fact that there has been one woman judge in the 95-year history of this Court can only be explained by any rational person as systemic bias against women, and this is well - - -
HIS HONOUR: No, it cannot.
MR LINDON: Sir, I put it to you - - -
HIS HONOUR: No, just listen to me. It is a matter of history. It may now look regrettable and it looked regrettable to a number of people at the time but in a number of States women were not admissible to legal practice until a date after the Constitution.
MR LINDON: And why was that? Systemic gender bias.
HIS HONOUR: Who knows?
MR LINDON: No, no, it is well documented. It is not who knows.
HIS HONOUR: It goes to fact. No, no, that is the legal fact why, for a certain period of time, it was impossible to appoint such people. They could not be found because they.....But what has systemic bias got to do with this constitutional question?
MR LINDON: Is that a serious question, sir? Sir, that question, I think, almost crosses the line of the Livesey test, sir. I think that - - -
HIS HONOUR: No, no, just tell me what systemic bias has to do in terms of section 72 of the Constitution?
MR LINDON: Right. Your Honour would be aware of the reports of the Law Report Commission last year on equality and the law in relation to women. Your Honour will also be aware of the report of the Chief Justice of Western Australia on gender bias. Your Honour will be aware of the Senate's inquiry into judicial appointments and their comments about gender bias.
HIS HONOUR: Of course.
MR LINDON: Right, and I provide detailed citations to the Court which, if we incorporate my written case, you will see all those. You will also be aware of a vast amount of academic writing on the topic as well.
HIS HONOUR: I am interested in some constitutional writing.
MR LINDON: Yes, but, sir, one of the very things that proves my point is the absence of any consideration of these issues because the people who have had the power to consider them have been male, white Anglo Europeans, and that is the point that is made. That is why I say you have crossed the Livesey line because - - -
HIS HONOUR: I have not crossed any Livesey - what is the Livesey line?
MR LINDON: Livesey v The Bar Association, sir. The test of bias which is - - -
HIS HONOUR: Are you inviting me to not consider this matter further for bias?
MR LINDON: No, sir; merely for the purposes - - -
HIS HONOUR: Well then, you should withdraw that remark.
MR LINDON: But, sir, for the purpose of argument, can I explain why I make it and then - - -?
HIS HONOUR: Sure, of course you can.
MR LINDON: It is not a personal - it is just that the test of bias is whether a certain section - say, a significant section, if you like - of the population would consider that a person appears to be biased. Not that he is, right, but he appears to be?
HIS HONOUR: We all know that.
MR LINDON: That is right. Well, that is the Livesey test. Now, if I can just complete the argument, sir.
HIS HONOUR: I keep asking you to put it into constitutional terms, you see.
MR LINDON: Yes, I know, sir, but that is one way of not dealing with the matter, right, and that is why I was going to take you to the separation of powers point.
HIS HONOUR: Yes, all right.
MR LINDON: Now, the separation of powers, as I understand the doctrine, is a system of checks and balances to ensure that no one branch of government, as it were, dominates or that at least there are checks and balances to prevent abuses of one other branch's power. I think it can be put in that way as a prohibition on abuse of power. Now, it is beyond argument - as a matter of judicial notice, your Honour would be aware that each of the three branches of government, the legislature, the executive and the judiciary, are dominated by a minority group. There is no question; that is an absolute fact and it has been a fact for 95 years and that minority group is the group I have described: white, Anglo males. That is not political, that is a fact, sir.
HIS HONOUR: Yes, I know, but you include some emotional baggage with the word "dominate" you see, do you not?
MR LINDON: No, sir. That is the point that the gender bias studies make, is that people hear, judges, white male judges hear aggression and they hear value-laden words when, in fact, they are not. It is a simple matter of fact, sir.
HIS HONOUR: Just think about the practicalities. Are you saying there is a constitutional principle which produces the result? And we are talking about a practical instrument of government, right?
MR LINDON: Yes, sir.
HIS HONOUR: That makes the business of the community go on from day to day.
MR LINDON: Yes, sir, of the community; the entire Australian community.
HIS HONOUR: Of course.
MR LINDON: Yes.
HIS HONOUR: Are you saying - and this is one of the things I do not understand. What relief are you seeking? What relief are you seeking in terms of practical consequence? It seems to be a practical consequence of your declaration 1 that people have been invalidly appointed, is that the consequence of it?
MR LINDON: It depends the way the declaration is phrased. I phrased it from the point of the declaration being made. It is in breach.
HIS HONOUR: But what is the practical consequence? Where do people go - are you saying - - -
MR LINDON: It is exactly the same as the practical consequence of any constitutional decision of this Court: Teoh's Case.
HIS HONOUR: I know. Of course it is. I am trying to find out what the - that is not a constitutional matter. I am trying to find out what the practical consequences are. Are you saying a number of people have been - and I assume you are - invalidly commissioned by the Governor-General under section 72?
MR LINDON: No, sir. I mean, I do not need to go that far and I certainly do not say that and I do not think that follows from the Court's decision. What does follow is - - -
HIS HONOUR: If that is not right, it has got to be a declaration in an ordinary civil law case, as you know, a declaration of legal right or legal liability or in a constitutional case, of constitutional illegality of some law or that some executive act, particular executive act, is invalid or some statute of the Parliament is invalid and that is what the judicial process is about and that is what the separation of powers, as you have been addressing me about, effects itself. That is how it effects itself.
MR LINDON: Absolutely.
HIS HONOUR: By deciding crystal clear issues with specific relief.
MR LINDON: There is no question.
HIS HONOUR: Now, where do I find that in this document? That is why I have been cross-examining you as I have been.
MR LINDON: Exactly, and what I am putting to you about this - - -
HIS HONOUR: To try and find out.
MR LINDON: I know but, also, there is a problem of the Court not "hearing" - I use that in quotes. It is not a personal thing. I do not wish to be, you know, accused of scandalising, but it is well documented - I take your Honour to be disagreeing me that the Law Reform Commission's reports, the report of the Chief Justice of Western Australia, reports of the Senate and all the research thereto just demonstrates as a matter of sociological fact that men in power do not "hear" this argument that is being put to them, right?
HIS HONOUR: Yes, except you, presumably. You, as a counsel, presumably, I take it.
MR LINDON: I do not want SNAG allegations being thrown around but I think increasingly men are coming to the realisation that they have not heard and not seen - that the rhetoric of - - -
HIS HONOUR: Of course, you may be perfectly right and that generates all sorts of political consequences which may produce a number of laws; it may produce a number of executive appointments, et cetera, et cetera, et cetera. No one is gainsaying that and that is how the system works, it responds to these matters of concern.
MR LINDON: Right, but just because a thing is political, it does not mean it has not got a legal dimension. Many of the cases that come before this Court, particularly constitutional cases, have practical political consequences, for example, the Industrial Relations Case of last year when the Court - as a constitutional case - a clear example.
Furthermore, your Honour, there are many cases that come before this Court - and I can find them for you. The declaration in terms of declaration 1, for example:
That insofar as the Commonwealth of Australia has -
done something -
it is in breach of the separation of powers -
is a perfectly proper constitutional pleading.
HIS HONOUR: No, it is not. It is not a pleading, it is a prayer for relief.
MR LINDON: I tendered to the Court - I do not know if you have a copy of it - some excerpts from the Cope book on Equity. Did your Honour receive that? There is a two-page thing there on declarations. If I could take you to a bit of equity law, because I do not put this - see, I put my argument on three grounds, sir: a constitutional ground; an equity ground and what I call a treaty ground and any one of the three will get me home. But if I can take you - - -
HIS HONOUR: No, no. Just listen to me. The relief you seek is a declaration, right? What you have to focus on is the law about declarations.
MR LINDON: Yes.
HIS HONOUR: There may be all sorts of underlying legal grounds and causes of action but at the end of the day the question is would a declaration in this form be made.
MR LINDON: Right. Now, we are agreed, I think, on one thing, your Honour, that this is a novel question to come before the Court.
HIS HONOUR: Yes.
MR LINDON: And that, I think, also, in the former Chief Justice's words, "It is the duty of the Court to provide a sympathetic ear and to understand quite clearly what is being put".
HIS HONOUR: It is not the job of the Court to provide a sympathetic ear to anybody. It is the Court's task to decide questions according to law, giving a fair hearing to either side.
MR LINDON: Thank you.
HIS HONOUR: It cannot be sympathetic to one side rather than another.
MR LINDON: I totally agree with your formulation. On that basis, given it is a novel question, it cannot be dismissed and ought not be dismissed in five minutes. I mean, I have arguments to put to you. I come before you as a barrister of many years standing and I have researched this matter and I refer you to my research in my written case and the documents thereto for starters, sir, and there are various ways of coming to this. Just as when Theophanous' Case and Capital TV perhaps first came before the Court, there was some resistance in some quarters to understanding the actual legal argument as opposed to the practical consequences and that there was some confusion between the two. Now, in my view - and your Honour has picked this up correctly - it is quite a momentous case in one sense. Perhaps as momentous as Mabo in the sense of recognising a section of the community who have not had their rights acknowledged previously and that is demonstrated by the Convention on the Elimination of Discrimination Against Women.
HIS HONOUR: Yes. Let us look at declaration 3 for a minute. This is the sort of difficulty I have.
MR LINDON: Yes, sir.
HIS HONOUR: You said, "procedures are ultra vires the Judiciary Act".
MR LINDON: Yes, sir.
HIS HONOUR: Which sections of the Judiciary Act?
MR LINDON: I have to go to my voluminous materials here. Sir, I cannot put my finger on it immediately without - perhaps I could refer to someone's Judiciary Act. I think it is the section concerning - - -
HIS HONOUR: Have you a copy of the Judiciary Act?
MR LINDON: No, I had assumed the situation would be the same as Melbourne, sir, where practitioners could take out books from the library but, in fact, apparently it is - - -
HIS HONOUR: I will get you a copy.
MR LINDON: Thank you, sir, that would be great. Perhaps I could just borrow the Registrar's Practice because we will be referring to it.
HIS HONOUR: Yes.
MR LINDON: I have not got - can I abandon this point temporarily?
HIS HONOUR: Well, I have got to decide.
MR LINDON: No, sir, I know, but I have got the Constitution there as well. It is an alternative thing. But I was just hunting for the Senate report on judicial appointments because there was some point made there in relation to the Judiciary Act which was what I had in mind in my draft statement of claim.
HIS HONOUR: Well, take your time.
MR LINDON: But I cannot actually dig it up.
HIS HONOUR: Take a minute to find it.
MR LINDON: I think I should say I am content to rely on the Constitution and the general power of the judiciary under Part IV, that the Judiciary Act, properly interpreted, would not contemplate allowing the decisions under Part IV of the Act and Parts V and VI to be made by a Bench almost completely made up of one minority group in the community. I think that is my point about it being ultra vires.
I have pleaded the Act generally, sir, not sections, so I think that is what I was - - -
HIS HONOUR: Yes, I know; that is right. That is the problem - your problem. Anyhow I will not say any more now.
MR LINDON: Inasmuch as the title of the Act is "Judiciary" and the topic is judiciary, we are not - just because it is a broad question, sir, does not mean it is necessarily either woolly or outside the jurisdiction of this Court to decide. It is a legal matter.
If one accepts, sir, that either the doctrine of equality, however that is formulated, or this doctrine of separation of powers actually exists and is part of the jurisprudence of this Court, then, I would say that the declaration sought, declaration 3 - - -
HIS HONOUR: The doctrine of equality in Leeth which commended itself to the majority arose in a context, did it not, of geographic discrimination, as it were, the point being made by the minority was that it was strange that the punishment for infringing a federal law could differ according to the particular State in which you happened to be tried. That was what was agitating them particularly.
MR LINDON: Yes.
HIS HONOUR: Now, what further steps do you seek to get out of the minority in Leeth?
MR LINDON: May I say one thing?
HIS HONOUR: Yes, please.
MR LINDON: Putting aside - abandoning completely any argument about Leeth today, not even having to argue Leeth, putting it all to one side, whatever the correct formulation, whatever any further development of that principle or complete Full Court rejection of the argument may be, the fact is that my separation of powers point stands. That alone is enough to get me home.
The Court, it seems to me, is presupposing that the Commonwealth would not consent to these declarations and I would put to you very strongly the argument that because the Commonwealth has taken many initiatives - and in my notice to produce in matter No M43 which I seek to refer to, sir, my notice to - - -
HIS HONOUR: But even if that were so, it is not a question of parties coming into court and saying, "We're both agreed about this declaration: make it", that is not how it works because the declaration obviously has an impact beyond the immediate parties.
MR LINDON: Absolutely.
HIS HONOUR: So, it involves some consideration of it by the court.
MR LINDON: No question. But my point simply being this, that one cannot assume that the Commonwealth would demur to these declarations and, in fact, the evidence that I could produce from their reports, their own, you know, executive and legislative decisions show that they would not necessarily do that so that no reliance can be placed on the fact that they are, in a loose sense, vexatious or frivolous, that they are serious questions.
HIS HONOUR: Now, you mentioned separation of powers just a minute ago. I think you were rather tending to put to one side Leeth; that is equality.
MR LINDON: Yes. I still maintain it is an arguable point and that it has not been finally disposed of and that there is room for development either of the principle or extension of the principle to new facts, right. Now, you are against me, you say that was just geographic, that is all it can be, but your Honour would concede that that may not be the view of a Full Court and that that position is not conclusive and final. It has not received the - - -
HIS HONOUR: It was rejected. Even that was rejected by the majority.
MR LINDON: That is one way of putting it, "even that", but I would say that the question as put to the Court in these declarations has (a) not been considered specifically and that Leeth has not finally disposed of it. I also say that there is that current debate in the community about the doctrine of equality and Leeth. Your Honour would have to be aware of the amount of academic writing both in articles and books published recently and I refer your Honour particularly to the chapter in Winterton's Australian Constitutional Perspectives, 1992, the chapter head, Appointing Australian High Court Justices: Some Constitutional Conundrums by James Thomson. This is chapter 8, pages 251 to 272 in the Winterton book.
I also refer your Honour to the Australian Journal of Human Rights, volume 1, 1994, page 424 of the Human Rights Bibliography under Women's Rights and page 425, the Right to Equality Before the Law. Would it be helpful if I just handed up, so your Honour can sight the references under the Right to Equality Before the Law? You will see, unsurprisingly, they are - - -
HIS HONOUR: Have you the Thomson article there, too?
MR LINDON: No, sir, I did not - but the Winterton book is - it is Australian Constitutional Perspectives 1992. It is actually by, I think it is Justice Lee - Lee and Winterton, Editors, forward by the former Chief Justice.
HIS HONOUR: No, it is Professor H.P. Lee, I think.
MR LINDON: Professor, is he?
HIS HONOUR: Yes.
MR LINDON: That book, sir, also has a chapter on Justiciability of Political Questions and standing in constitutional matters which I would ask your Honour to peruse in your deliberations.
HIS HONOUR: Yes.
MR LINDON: Sir, can I just, while I am giving you some references if I may: in matter No M44, the file that we have dealt with earlier, there is a document headed Notice to Admit Facts and Produce Documents. Now, it was filed in that matter.
HIS HONOUR: But that can only be filed if there is a trial. There is no trial.
MR LINDON: Yes, but I did not know what the Commonwealth's attitude was to my application this morning so I filed it. But I only ask your Honour to refer to that because the facts that I have asked them to admit to I will be asking them to admit to those facts should this matter proceed, right?
HIS HONOUR: Yes.
MR LINDON: And you will see that those matters are squarely within the matters of fact that have been held by courts for a long time to be admissible to facts, if I may say that and, secondly, the last page of that document is headed Notice to Produce Documents. Now, I wanted to just take you through those documents because they are my references, if you like. I think the Court ought to look at - - -
HIS HONOUR: This is an irregular proceeding, really.
MR LINDON: It is just that it is before you, sir. It is there and rather than me - I just thought it might be of assistance to the Court. Now, in my submission, those are all documents of the Commonwealth.
HIS HONOUR: Yes, so?
MR LINDON: I just wanted to take you through them, sir, because they are relevant material to put to the Court.
HIS HONOUR: Have you a copy of this document?
MR LINDON: I am just trying to find it myself, sir. Perhaps if I could see your Honour's file in M44, I will locate it for you by sight. It was a document filed on - - -
HIS HONOUR: Notice to Admit Facts?
MR LINDON: That is it; that is the one.
HIS HONOUR: Yes, I have it.
MR LINDON: Thank you, sir. I will just take you to - you see, just in passing, that those facts that I have asked the Commonwealth to admit, although the document, I concede, is not in exactly proper form - - -
HIS HONOUR: They may refuse to admit them.
MR LINDON: They well may, sir, but there are steps that can be taken after that in terms of calling evidence and it reflects itself in costs. I just show that they are not facts that are in the air. They are relevant facts. Now, the last page of that document is headed Notice to Produce Documents. I think we have skipped past it, sir, it was only four pages long.
HIS HONOUR: Yes. Well, what specifically do you want to get out of this, Mr Lindon?
MR LINDON: The document - - -
HIS HONOUR: There is a notice of a constitutional matter.
MR LINDON: Yes, sir.
HIS HONOUR: And there is an affidavit by yourself.
MR LINDON: Yes. The document I am referring to is dated - - -
HIS HONOUR: Affirmed on 9 June.
MR LINDON: No, that is - - -
HIS HONOUR: And then there is - that looks like the front sheet from the Australian Law Reports, and then there is Cases and Materials on Gender Bias and Equality.
MR LINDON: Right. Well, I assume your Honour has - - -
HIS HONOUR: You have referred me to that.
MR LINDON: Yes. It would be, I think, the last document on the file. It ought to be because it was the last document filed.
HIS HONOUR: An Extrinsic Materials, Government Inquiries and Academic Research. You have referred to that.
MR LINDON: Yes.
HIS HONOUR: And then there is attachments.
MR LINDON: That goes to the issue of standing, that attachment. That shows that the matter was raised in - - -
HIS HONOUR: Yes, and that is it.
MR LINDON: There is no four-page document - I thought your Honour had already referred me to it. You saw a Notice to Admit Facts and Produce Documents.
HIS HONOUR: There is a letter here about it from the Commonwealth.
MR LINDON: No. I see. It is a document dated 23 November filed in the Melbourne Office of the Registry together with these other documents and I believe transmitted to Canberra. I will try - - -
HIS HONOUR: The only document answering that description on the file is the one I have taken you to as far as I can see.
MR LINDON: Yes, sir. My only other thought would be that it might be in matter No M - it might be in the present file that you have before you.
HIS HONOUR: That is in No 44. Now, is there any other file you want me to look at? It is not really my task to find documents for you, Mr Lindon. It really is not. Now, what else do you want me to look at?
MR LINDON: Well, sir, it is the Court's document.
HIS HONOUR: It is not my task to find documents for you. You should have copies handy.
MR LINDON: That is true, I concede. Sir, it is right in front of me. I pass up to you - sorry, my junior fails me again.
HIS HONOUR: Yes.
MR LINDON: The first three pages are facts that I say the Commonwealth, in due course, if these proceedings are issued, if a demurrer application is not brought, should it be unsuccessful, that these are facts that the Commonwealth will be asked to admit.
HIS HONOUR: Yes. Just take a minute for me to read it, thank you. Just sit down for a minute. These are conclusions, really, as to a large number of them. Anyhow, you are hopeful that the Commonwealth would admit these statements.
MR LINDON: Sir, I say that on their own documents, which are on page 4 - - -
HIS HONOUR: That does not mean they will admit them in litigation.
MR LINDON: No, no, I say I can prove them, sir. I can prove them under the Evidence Act. I can prove all those facts. Now, if one looks at page 4 of that document, sir, there is a list of documents to produce. See that?
HIS HONOUR: Yes.
MR LINDON: Now, once again a notice to produce, blah, blah, blah, blah. If I can just run you through those documents, sir, and go to the bottom one first which is the most recent report of the Human Rights Commission, right?
HIS HONOUR: But that is just a report of the body.
MR LINDON: I beg your pardon, sir?
HIS HONOUR: That is just a report of an agency of the executive.
MR LINDON: It is a statutory body.
HIS HONOUR: Yes, all right.
MR LINDON: Of the Commonwealth of Australia.
HIS HONOUR: Yes.
MR LINDON: It is the Commonwealth's document, sir, in this matter.
HIS HONOUR: Yes, all right.
MR LINDON: Now, just as an example: that report shows that over half the complaints received - - -
HIS HONOUR: But it does not prove anything.
MR LINDON: I beg your pardon, sir?
HIS HONOUR: In any specific sense, does it, in this case?
MR LINDON: Yes, it does. It shows - I think one of the things that has to be shown - you have put it to me two ways: that even if I am right on everything else, this kind of relief - these declarations could never be made in those terms but I also take you to be saying that you are very doubtful about the steps even to get to the declarations, both on the relief sought and the actual, if you like, material facts necessary to make out that relief, I would fail. I take you to be saying both things to me.
Now, on the ability to make out those materials facts, to plead them successfully, I say that these document are relevant and I take you lastly to the Human Rights Commission Report because that shows that over half the complaints received in the current 1993/1994 year are in relation to sex discrimination. I simply rely on that as an example of showing that there is a current debate in the community, there is a current concern in the community about sex discrimination and gender bias. There is current community concern undeniably, right?
HIS HONOUR: Yes. Well, there is legislation about it.
MR LINDON: That is right. And it has caused significant - it is on the increase. The report shows that those complaints have increased 100 per cent from the year before. Therefore, it would be useful for the Court, if it has power, to clarify the issue. I put it in that way.
The next two documents, sir, are in relation to the Law Reform Commission, once again, a Commonwealth body, law of standing, and I actually have a copy of that to give you.
HIS HONOUR: I am familiar with that report.
MR LINDON: Yes; good. Right. And the final report on costs, the cost shifting report.
HIS HONOUR: Yes, I am familiar with that, too.
MR LINDON: You are familiar with the Court's power, as suggested in there, to make public interest costs orders at an early stage?
HIS HONOUR: Yes.
MR LINDON: Yes, right. And both of those Law Report Commission reports discuss in some detail what public interest litigation is and how, in matters of community concern, where there is some, as it were, doubt that it can be clarified. Now, the access to justice - the Minister's justice statement with a forward by the Prime Minister - the next document above that - the Attorney-General's justice statement, makes crystal clear, particularly in relation to women, that test cases can clarify the rights of women. Do you want me to take you to the exact page references or - - -?
HIS HONOUR: No, I am sure that is right.
MR LINDON: Right. But, sir, it is hard to think of any other topic or any other issue that has such an importance to so many people in the community as this one in terms of the previous denial of rights to equal participation in the community. I mean, I do not take your Honour to be suggesting that you deny there has been such inequality in the past. I mean, it has been clearly admitted by Justice Deane and I cited, in my written case - I will take you to the exact citation - I cite their Honours who point out that there has been - in Leeth's Case, sir, Justices Deane and Toohey at pages 541 to 542 in the ALJR report which begins at page 429.
HIS HONOUR: What I am trying to get you to grasp is this: of course that may be right and of course there are many parliamentarians out there who are elected and paid to cope with these social problems by passing laws.
MR LINDON: That is right.
HIS HONOUR: What you seek to do is to, in a sense, not follow that path. You seek, somehow, to use what you say is there anyway in the Constitution, which is imposed upon people, which can only be changed under section 128, as a method of achieving an answer to what you say is a wrong state of affairs.
MR LINDON: I understand what your Honour is putting to me. I disagree because one of your assumptions is invalid.
HIS HONOUR: Now, there is much legislation on the topic, is there not?
MR LINDON: Yes, sir.
HIS HONOUR: How does this bear upon this statement of claim. That is what we keep coming back to.
MR LINDON: Because we are in a court of law in a common law court and an equity court, I believe I can refer to an argument by analogy, you know, from case by case, because analogies are a legitimate method of argument in this Court. My analogy is simply this - - -
HIS HONOUR: You are not asserting a private right as a matter of tort or contract or fiduciary duty or any of those things, you are invoking the Constitution, right? This is a constitutional law case.
MR LINDON: Yes, yes, but I do not exclude the fiduciary duty of the State to the people and those things.
HIS HONOUR: Well, that comes out of the Constitution, if it comes out from anywhere.
MR LINDON: I agree. Has your Honour had a chance to peruse Professor Finn's article on the Forgotten Trust between the State and the People?
HIS HONOUR: Yes, I am familiar with it.
MR LINDON: Good. And, indeed, the other articles in there by Professor Maxin and the commentary by - - -
HIS HONOUR: I am not familiar with them. There is a limit to what one can read in order to decide what is an intensely practical matter about this pleading.
MR LINDON: I also hear your Honour saying that. For example, in Theophanous' Case and, indeed, in many other constitutional cases, it is not sufficient for the Court to say, "Well, your remedy is in Parliament; your remedy is in legislation; that's where laws get made", because it is a denial of the judicial law-making power. There is some debate about the degree of - - -
HIS HONOUR: What I am putting to you is judicial law making, as you keep calling it, has to be exercised carefully - - -
MR LINDON: No question - - -
HIS HONOUR: - - - because it is fundamentally non-democratic.
MR LINDON: It depends on the institutional democracy.
HIS HONOUR: Its route comes out of the Constitution, of course.
MR LINDON: Yes, but its - - -
HIS HONOUR: But it is fundamentally undemocratic in the sense that it is not the product of a decision by a representative assembly of legislators.
MR LINDON: That is true. Therefore - - -
HIS HONOUR: Who are periodically elected.
MR LINDON: Absolutely. Therefore, all the more critical that the Bench who is making those decisions of an undemocratic nature be representative, right, of the sections of the community - 51 per cent of the community are women. They are represented by one person.
HIS HONOUR: Why do you say judges represent anybody rather than everybody?
MR LINDON: Yes, I understand that argument. One of the reasons I say that - - -
HIS HONOUR: They represent the community.
MR LINDON: And, sir, that is demonstrably unfortunately not true in relation to the rights of women because if that were true there would be no need for much of the legislation, for much of the current debate, and there would be more, I would submit, than one woman who has been on this Bench in 95 years.
HIS HONOUR: Well, you say any more you want to say, Mr Lindon. I will hear you without interruption.
MR LINDON: Right. I understand what - - -
HIS HONOUR: Do not feel inhibited. Just tell me any more you want to say.
MR LINDON: Yes, sir, but that is virtually a code for - - -
HIS HONOUR: It is not a code for anything. It is an invitation to you to say any more you want to say without interruption.
MR LINDON: Right. Thank you, sir.
HIS HONOUR: Because I have interrupted you quite a bit, I realise that.
MR LINDON: Yes, but I would far prefer that to making submissions blankly.
HIS HONOUR: Yes.
MR LINDON: That is why I say I understand what your Honour means.
HIS HONOUR: It is more helpful for me. Take the opportunity if you wish to take it.
MR LINDON: Thank you, sir. Just one last thing: I just take your Honour to be saying that really there is probably not much more than can be put to you on this matter at the moment and that it would just probably be sort of playing out the time for me to go on putting things to you but if that is not the case I will go on putting matters to you that I think have not been put. But I do not want to irritate the Bench unduly by making you sit through - - -
HIS HONOUR: You are not irritating me but what other matters do you want to put?
MR LINDON: Thank you, sir. I was in the middle of citing the decision of Leeth which we have discussed at some length this morning and I was quoting a passage from Justices Deane and Toohey at pages 541 to 542 of the ALJR decision which begins at page 529. These are set out, by the way, sir, in my written case at page 9. The quotes are:
some past anomalies, notably, discriminatory treatment of women -
and they refer to the:
equality of all persons.....and a basic prescript of the administration of justice - - -
HIS HONOUR: Sorry, 529?
MR LINDON: Yes, sir: 541 to 542. It goes over the page. Do you have the passage at the beginning, "some past anomalies, notably, discriminatory treatment of women"?
HIS HONOUR: We are looking at Leeth?
MR LINDON: Yes.
HIS HONOUR: Which page?
MR LINDON: Have you got the CLR or the ALJR?
HIS HONOUR: I have got l74 CLR.
MR LINDON: See, I only have the reference to the ALJRs which is of no assistance to the Court. However, the passage is cited at page 9 of my written case, sir.
The passage I rely on here is that their Honours say - they refer to what I take to be a principle of equality of all persons regardless of gender, race, et cetera, and then this very important principle occurs. It is a basic precept of the administration of justice. The equality of all persons is a basic precept of the administration of justice. It is fundamental, if you like, to natural justice and to judicial power under Chapter III of the Constitution, that all persons be equal.
Now, once one takes the view - if you say it is a fundamental precept of the administration of justice that all persons are equal - and it is clearly demonstrated by the provision of the Constitution that tries to make the Commonwealth and individuals as equal as possible. There is a lot of attempts to embody this principle and I say it is implicit in the judicial function. If that be true and if the Court then goes on to recognise that, in fact, there has been noticeable discriminatory treatment of women, past anomalies - accepting that they are past for the time being - then the Court has a duty to make sure that equality of all persons is, as it were, guaranteed in the future. It may not be possible to remedy past discrimination but it is important and it behoves the Court, as a fair minded court embodying the principles of natural justice, to allow equality to all persons and to be particularly careful where equality has clearly and demonstrably been denied.
I do not take anyone in Australia to deny the simple proposition that there has been past and continuing systemic bias against women when it is so well documented. All the Commonwealth reports that I have put to you, the Law Reform Commission Report, the report on the judicial appointment, make quite clear that thatt is beyond argument. It is beyond argument there has been past discriminatory treatment of women. Now, if that be the case, and this Court takes as a fundamental precept the administration of justice that all persons are equal, then I say that Leeth's Case is of some assistance to me in the constitutional matter.
Your Honour is probably aware, too, of the dictum by Justice Gaudron in Singer v Berghouse?
HIS HONOUR: That is the Testator's Family Maintenance Case?
MR LINDON: Yes, but I rely on a passage, sir, at page 667, once again, of the ALJR; once again, this is cited at page 9 of my written case. She refers, sir, to the Law Reform Commission inquiry as well as to the hidden gender of law by Graycar and Morgan and to Dr Jocelyn Scutt's book on Women and the Law and she says this:
To put the present matter in terms appropriate to appellate review, the failure to -
take into account those matters -
amounted to a failure to have regard to a relevant circumstance - indeed, a very relevant circumstance.
Now, my submission to you is this, sir, that failure to have regard to what I call the continuing and past systemic bias of the Commonwealth of Australia against women, particularly in relation to judicial appointments in women, is a very relevant circumstance that the Court must consider in deciding whether or not to grant leave to issue this writ. Do you follow my point there, sir?
HIS HONOUR: Yes, go on.
MR LINDON: It is simply this, that if the Court concedes that there has been past and, really, quite substantial discrimination against women demonstrated, as I continue to say, by the fact only one woman has been appointed in 95 years; if one accepts that, then it is important in terms of access to justice and public interest litigation and clarifying the law as it affects a certain section of the community, that leave be granted for this matter to go to a statement of claim, a defence, a demurrer, if that be the case, and to a hearing.
I also rely on a passage in Street's Case[1989] HCA 53; , 168 CLR 461, sir, where the Chief Justice Brennan, at page 512, when he was just a Justice of the Court, says , "equality of treatment is a basic doctrine of the Constitution". Now, I understand that Street's Case involves section 116. There is no doubt that when the present Chief Justice said "equality of treatment is a basic doctrine of the Constitution" he was correct. Where the Court can see that equality of treatment has been denied for so long to a section and the majority of the Australian community, the numerical majority, then it ought to pause very long before allowing the legal issues involved in that inequality to be ventilated.
So, my argument, sir, in relation to the actual issue of the writ and granting leave to issue the writ, given that we have seen how, in practical terms, unappealable a decision to grant leave or not is - in practical terms, I think there has been, to my knowledge, no case where the Court has granted leave once it has been refused except in that matter before you this morning. Given that it is so hard to obtain leave, I say that the principle of fiduciary obligation arises.
If I can take you to the formulation of fiduciary obligation by Justice Toohey in Mabo's Case, sir, where he basically - if I can crudely summarise it - says that the power to exterminate brings with it a duty to act with the utmost good faith. Would you accept that is a rough and very crude summary of the principle?
In this case, sir, the power to refuse leave, to, as it were, exterminate the proceedings, brings with it the duty to act in utmost good faith. Right?
I mean, I say that the Court, the Justice himself, has an obligation to ensure that every matter that can be put in relation to those declarations is put before the Court at the appropriate time.
Can I take you to the words of Viscount Dilhorne in DPP v Humphrys (1977) AC 1?
HIS HONOUR: What has that got to do with it?
MR LINDON: Viscount Dilhorne, at page 26, says:
A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution.
Now, this passage was cited by Justice Davies in - - -
HIS HONOUR: This is not a prosecution.
MR LINDON: Sir, I understand that. This passage was cited by Justice Davies in Strictly Stainless Pty Limited v Deputy Commissioner of Taxation, 5 November 1993, at page 5 to 6. After this passage, Justice Davies said:
it is an important principle of public policy that a person should be entitled to approach a court and have his case determined according to law whether or not the institution of the proceedings be reasonable. A court must stand apart from the institution of the proceedings. A court must listen to people who wish to make a claim,.....But if a person brings a claim, and is entitled to relief, then the court will grant relief.
And in Lindon v Kerr & Ors, sir, in the Federal Court of Australia, Full Court decision which can be found in the application book in matter No M43 and 44 of 1995 in this Court, sir, the Full Court said this - at page 9 they cited the above passages and after a further discussion of the cases concluded at page 11 with the observation of Lord Emund-Davies in DPP v Humphreys at page 55, that:
judges should pause long before staying proceedings which on their face are perfectly regular -
and decided:
The same principle applies where it is sought to prevent the institution of proceedings which, on their face, are perfectly regular.
Now, I know your Honour and I are far apart on whether these proceedings are, on their face, regular in terms of the relief sought but the clear tenor and intent of those passages is particularly important in a representative democracy that citizens ought to have the right, ought to be entitled to approach a court and have their case determined according to law. They ought to be allowed to issue a writ; they ought be allowed to bring the other party to the court, particularly where the other party is the Commonwealth of Australia, particularly where it is a matter of great public interest to a significant section of the population and the proceedings ought be allowed to run their course.
Particularly, if the Court accepts my proposition that the Court has, in the past, both in terms of the appointments which is outside of the Court's control but in terms of the perception of its own gender bias, and that is currently, as your Honour is aware from another matter this morning currently a matter of the Australian Institute of Judicial Administration is concerned with, your Honour would be aware that over 150 judges - many were turned away - attended a seminar on gender awareness, the first national conference of its kind and perhaps the most significant conference of judicial education ever held in this country on any topic and this topic was on gender awareness.
So, where the issue sought to be litigated, the subject matter is -concerns gender bias and where the Court has power, in this case, to grant declarations, it ought to, in the words of their Honours already cited, they ought to "pause long before staying proceedings which on their face are perfectly regular".
Does your Honour wish to hear me on standing?
HIS HONOUR: No.
MR LINDON: Right.
HIS HONOUR: I am prepared to assume that in your favour.
MR LINDON: Thank you, sir. And does your Honour wish to hear me on the justiciability of these questions? Do you think that is - - -
HIS HONOUR: Yes.
MR LINDON: I have already referred your Honour to Lee and Winterton's book. There is a chapter 7 by Geoffrey Lindell who has also edited another recent book on constitutional issues - it is called the Justiciability of Political Questions: Recent Developments, and it begins at page 180. He considers the meaning of justiciability, the political questions, doctrine in the US, and its relevance elsewhere, and the duty to exercise judicial review. I will not go on at length about that, sir, merely to cite that to you.
Your Honour has raised the question of the practical relevance of such declarations. There are many and varied consequences that flow from any constitutional case of this Court. This is no exception. But a particular issue in question is an application for special in relation to whether a Full Court of the Federal Court of Australia is lawfully constituted and is a lawful Federal Court if none of its members are women.
HIS HONOUR: I was asking you that. You are attacking validity of appointments then.
MR LINDON: I beg your pardon?
HIS HONOUR: You are attacking the validity of commissions?
MR LINDON: Well, that is the composition of a bench.
HIS HONOUR: I am asking you. You must be attacking the validity of the commissions?
MR LINDON: No, sir. Well, that is the composition of a bench. As I understand it, the Chief Justice, under the recent Court Governance statutes which are described by Justice Sackville in an article - - -
HIS HONOUR: There is a limited number of female judges of the Federal Court.
MR LINDON: Right.
HIS HONOUR: And you say they have to work four times as hard as the men?
MR LINDON: No, I say that - - -
HIS HONOUR: Because of what is said on all these cases because otherwise the courts are not validly constituted. That seems an absurd proposition.
MR LINDON: People thought the sex - - -
HIS HONOUR: The only other proposition is that some of the other judges or all of them are invalidly appointed. So, there is a proportion of 10 validly appointed judges: five females and five males. Now, how is the community's business going to be done on that basis, day to day?
MR LINDON: First of all, it does not necessarily follow in that way. It is not a one-step 50 open the flood gates kind of fear. I should say practically though, sir, the workload of both this Court and the Federal Court is overwhelming - and there is an article of judicial stress by Justice Kirby in the recent Bar Review points that out. If the solution is to appoint more judges numerically, all of whom are women, well, so be it.
HIS HONOUR: Yes. Now, is there anything more you want to add, Mr Lindon?
MR LINDON: Yes, I was just making a point, sir, and now I will finish up. I was just pointing out that there are practical consequences in terms of the composition of benches which is an internal matter for the Court and I have put up the proposition that the administrative doctrine of necessity which was relied on by the Full Court, for example, and your Honour just adverted to it then, in relation to the lack of women already on both this Court and other Federal Courts and whether they would have to work four times or seven times, whatever, harder - I will just finish on this point. In my submission, the doctrine of necessity cannot be activated for this reason - and I have cited a passage by Justice Barford which is this, sir which is that there are already more than enough well qualified women - persons who happen to be women - for appointment to federal benches including the Federal Supreme Court, which this is, so that the doctrine of necessity cannot be made out.
The only way the doctrine of necessity can be made out is in relation to the internal matters. Given the Court has no control over who - - -
HIS HONOUR: Look, Mr Lindon, you have had an awfully long time this morning. You have had longer than many litigants get on a full appeal before a Full Bench.
MR LINDON: It is a very important matter.
HIS HONOUR: Undoubtedly. So, are those matters. Now, is there anything more you want to add?
MR LINDON: Not at the risk of trying the patience of the Court, sir.
HIS HONOUR: You are not trying my patience. Is there anything more you wish to add, bearing in mind the pressures and natural pressures of time and the like that you have not said that seem to you to be of real substance?
MR LINDON: I rely on what is in my written case and what I have already said, the general thrust of that. I simply say, sir, that the evidential matters which I attempted to put before you and which I refer to in the documents in the notice to produce documents and in my supplementary case to M44, which is contained in my affidavit that you have dealt with this morning and in the documents referred to in my written case, which I have copies of and am prepared to make available to your associate, if you so wish - I rely on the matters canvassed in those to make out my case. I simply say that my perception, rightly or wrongly, is that the Court does not hear - once again in this sociological sense - what I am saying.
HIS HONOUR: Well, you have said that.
MR LINDON: I know.
HIS HONOUR: Why say it twice?
MR LINDON: Because your Honour has made the point that the Court is very busy; pressure of work; I have had more time than most litigants, right?
HIS HONOUR: Yes, you have.
MR LINDON: Sir, no. How long do you think - - -
HIS HONOUR: What I am asking you is, is there anything more you want to say?
MR LINDON: Yes, sir.
HIS HONOUR: That you have not said before.
MR LINDON: Right. All I say in relation to that is I am making the point of about not hearing. Thank you, sir.
HIS HONOUR: I will take a short adjournment.
AT 12.29 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.31 PM:
HIS HONOUR: What I am about to deal with is the last remaining of the four summonses that have been before the Court this morning. This one is in the file that has been given the number M305 of 1995.
On 15 November 1995, a Justice of this Court, Justice Toohey, made a direction pursuant to Order 58 rule 4(3) of the Rules. That states:
If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it.
The direction made by Justice Toohey was that the Registrar refuse to issue the process in question without the leave of a Justice first had and obtained by the party seeking to issue it. What is sought this morning upon a summons dated 24 November 1995 is an order for such leave. The summons is supported by an affidavit of the applicant, Mr Leonard John Lindon, affirmed 23 November 1995. There is also a draft Notice of a Constitutional Matter dated 23 November 1995 signed by Mr Lindon.
MR LINDON: With respect, it is not a draft.
HIS HONOUR: Well, it is a draft until it becomes appropriate to issue it.
MR LINDON: Sorry.
HIS HONOUR: There is also the writ in question which would initiate the action which the applicant seeks to pursue.
Put broadly, the applicant seeks to agitate issues relating to the alleged gender imbalance in the appointment of federal judicial officers and, perhaps, judicial officers generally in Australia. I am not to be taken as suggesting that it would not be possible to frame an action in such a way that did present a specific issue in such a fashion that might involve ventilation of those questions in proper legal form to achieve a specific result. However, the question here is whether the action sought to be initiated by the writ I have referred is one to which Order 58 rule 4(3) applies, specifically that the proceedings would be frivolous or vexatious in the technical sense, that they would be bound, as framed, to fail.
It has been said on various occasions that a proceeding which must fail in a clear sense is one, the prosecution of which would involve an abuse of process. That, of course, is a technical term. An example is a statement of Lord Justice Danckwerts in Charles Forte Investments Ltd v Amanda (1964) Ch 240, at page 259.
Now, the writ claims certain declarations against the other party to the proposed proceedings, namely, the Commonwealth of Australia. The text of the declarations sought as the principal relief is as follows:
1. That insofar as the Commonwealth of Australia has allowed each of the three branches of government to be dominated by the same minority group, namely anglo-celtic males, it is in breach of the separation of powers between Executive, Legislature and Judiciary implied in the Constitution.
2. That insofar as the Commonwealth of Australia has through systemic and other discrimination historically effectively prohibited, and continues to so effectively prohibit, representatives of the numerical majority of Australian citizens (namely women) from dominating, or at least being equally represented in, any of the three branches of government it is in breach of the separation of powers between Executive, Legislature and Judiciary implied in the Constitution.
3. That insofar as the Commonwealth of Australia's procedures for the selection and appointment of judicial officers of the Commonwealth, including Justices of the High Court of Australia, permit nearly all those appointed judges to be anglo-celtic males, then those procedures are ultra vires the Judiciary Act 1903 and/or in breach of the Constitution (the doctrine of equality and the implication of representative democracy).
4. That insofar as the Commonwealth of Australia's procedures for the selection and appointment of judicial officers of the Commonwealth, including Justices of the High Court of Australia, have through systemic and other discrimination historically effectively prohibited, and continue to so prohibit, representatives of the numerical majority of Australian citizens (namely women) from dominating, or at least being equally represented in, the federal judiciary, then those procedures are ultra vires the Judiciary Act 1903 and/or in breach of the Constitution (the doctrine of equality and the implication of representative democracy).
The applicant points to various published studies and, indeed, to judicial decisions which have indicated that in various respects in the corpus of the law there has been what might be regarded as differential treatment between the sexes. One of the illustrations to which he refers, a recent one, is the reference by a Justice of this Court to the point in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. That was a case in which the specific context was provided by the Family Provision Act 1982 (NSW). The passage appears at page 228 with particular reference to the materials in footnote (46) on that page. That, however, is not the question here.
The applicant relies upon the invocation of constitutional doctrine. Four points are mentioned. The doctrine of equality is the first. That is said to be derived, principally, from the minority judgments in Leeth v The Commonwealth of Australia [1992] HCA 29; (1992) 174 CLR 455. The second is described as the principles of representative democracy as expounded, particularly in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.
As indicated in the course of argument, in my view, once those matters are investigated a little closely, it would become apparent that even if, for example, the minority decision in Leeth were accepted, there would be provided no footing necessary for the sustaining of the case sought to be presented here by this proposed proceeding.
Reference also is made to what is identified as the separation of powers doctrine and the provisions of Chapter III of the Constitution for the exercise of the judicial power of the Commonwealth, in particular, by that exercise by federal Judges appointed by the Governor-General in Council under section 72 of the Constitution. That also, in my view, provides no footing and could provide no footing of the type necessary for the applicant to make out the case sought to be presented here.
In any event, even if I be wrong in that respect, the case really has to be looked at by referring to the form of the relief sought in the four declarations which I have read out. It is, in my view, clear, and very clear, that as a matter of ordinary principle governing the grant of declaratory relief in constitutional litigation as in litigation involving purely private rights, relief of this sort would not be granted as framed here. The declarations do not declare any particular legislative or executive act to be invalid nor, indeed, is any particular legislative or executive act identified. Rather, the declarations would operate loosely and at large rather than giving effect to a resolution of a particular controversy submitted for resolution in a specific sense under Chapter III of the Constitution.
The declarations are framed in a way which gives effect to what I have no doubt is the very deeply held beliefs of the applicant which he seeks to have passed upon by the Court but the point is that litigation under Chapter III of the Constitution cannot resolve itself into relief framed in such a way as is sought here, even if there were an underlying ground for some claim of some sort to be made.
Accordingly, I have reached the conclusion that leave should be refused to issue the writ in question.
AT 12.49 PM THE MATTER WAS CONCLUDED
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