Graham & Ors v State of Queensland & Ors S191/1994 [1995] HCATrans 43 (20 February 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S191 of 1994

B e t w e e n -

BARBARA ANNE GRAHAM, ANNE-MAREE CHRISTIANA GRAHAM, JOHN ISAAC COEN-GRAHAM and JACINTA-ARIELLA VEIDA COEN-GRAHAM

Plaintiffs

and

STATE OF QUEENSLAND, STATE OF NEW SOUTH WALES, ELIZABETH WRIGHT HAMILTON, MICHAEL G. CONNORS, CHRISTINE J. VACHON and OTHERS

Defendants

Application by Second and Fourth Defendants to set aside Writ of Summons

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 20 FEBRUARY 1995, AT 9.31 AM

Copyright in the High Court of Australia

______________

MR L.KATZ: If your Honour pleases, I appear for the State of New South Wales, for Mr Connors, who are the applicants on a motion today. (instructed by the Crown Solicitor for New South Wales). I mention the matter as well on behalf of the State of Queensland, Mr Hamilton and Ms Vachon, the other defendants. Those three defendants have asked me to convey to the Court that they would submit to any order made by the Court in the matter.

HER HONOUR: That is a bit cryptic, Mr Katz.

MR KATZ: Your Honour will see, if I have an opportunity to develop the matter, that - - -

HER HONOUR: Is there any appearance for Ms Graham?

MR KATZ: Apparently not. I have an affidavit of service which I can file in Court.

HER HONOUR: Thank you. Perhaps Ms Graham should be called outside the Court. I will read this affidavit in the meantime.

MR KATZ: Would your Honour be so good as not to read paragraph 2. I do not seek to read paragraph 2, but only paragraphs 1 and 3.

HER HONOUR: Thank you. If I read paragraph 1, is that good service?

MR KATZ: It is, your Honour. Order 4 rule 3 of the Rules provides that:

Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff at his address for service.

Your Honour, there is nothing in the Rules which requires any of these matters to be served personally.

HER HONOUR: There is a gentleman here. Are you involved in this matter, sir?

MR BUCKINGHAM: Ms Graham did leave a message with me, if she was late, to let you know that she would be coming.

HER HONOUR: Thank you.

MR BUCKINGHAM: She has not been too well.

HER HONOUR: Thank you.

MR KATZ: Would it be convenient to stand this matter down then, your Honour?

HER HONOUR: Yes, we will stand this matter down in the list. Thank you, Mr Katz. I will place the affidavit of service with the papers, however.

MR KATZ: Thank you, your Honour.

AT 9.34 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.37 AM:

MR KATZ: If your Honour pleases, Ms Graham has in fact arrived. She is just outside.

HER HONOUR: Ms Graham, you are the plaintiff in this matter and the respondent to this summons?

MS B.A.GRAHAM: I am the plaintiff and I am also appearing and making the application on behalf of my three children, your Honour.

HER HONOUR: Yes. You understand that the matter listed before us today is a summons which is taken out by - - -

MR KATZ: Your Honour, there are actually two summonses, one for the State of New South Wales and one for Mr Connors.

HER HONOUR: Thank you.

MS GRAHAM: Yes, your Honour, I do understand that that summons is before the Court and perhaps - I do not know whether it has been brought to your attention that there is also a summons and an affidavit regarding urgency has been sitting on the Court file since 21 December 1994 last year when this matter was filed. I do not know whether the defendants in this matter are aware of that but I understood that it was necessary for that particular summons to come before the Court before it could be served, especially since it is seeking urgent interlocutory orders.

HER HONOUR: I think the question is whether there is any jurisdiction for the Court to embark upon the matter at all, that is the question raised by the summons, and jurisdiction has to be determined as a primary matter, Ms Graham.

MS GRAHAM: Yes, well may I address the Court regarding that, your Honour?

HER HONOUR: We should hear from Mr Katz first. He says there is no jurisdiction and it is up to him to establish that.

MS GRAHAM: Thank you, your Honour. May it please the Court, I do apologise for my tardiness this morning. I had a difficulty obtaining transport.

HER HONOUR: No, it is not necessary to apologise. Unfortunately the consequence has been that you came second in the list, rather than first. Yes, Mr Katz.

MR KATZ: If your Honour pleases. There are filed two summonses, one by New South Wales dated 11 January 1995, one by Mr Connors, dated 1 February 1995. Each of those summonses was supported by an affidavit of the same date and there was a further affidavit filed in support of both summonses on 10 February 1995, all three of those affidavits sworn by Mr McDonnell, an officer from my instructing solicitors. There is further an affidavit which I understand to be on the Court file of 8 February 1995 of Mr McDonnell deposing to service of notices under section 78B of the Judiciary Act 1976 .

HER HONOUR: I think that is right. Do we need to concern ourselves with that?

MR KATZ: I do not believe so, your Honour. As to the affidavits in support of the summons, for reasons which I can explain to your Honour but which I think probably would be an unnecessary distraction, it is unnecessary to read those affidavits but I would seek to read paragraph 5 only of the affidavit of Mr McDonnell of 10 February 1995. In paragraph 5 of that affidavit of 10 February 1995 Mr McDonnell says that:

I am informed by Michael G. Connors -

who is the fourth defendant -

and believe that he was born on 23 February 1933 in Northern Ireland and moved to Sydney in the State of New South Wales in August 1965 where he has continued to live ever since -

If your Honour pleases, that is the evidence in support of the two summonses.

HER HONOUR: Yes. Do you have any evidence you want to give in respect of the summonses, Ms Graham?

MS GRAHAM: Your Honour, I do not have that affidavit that Mr Katz was referring to. The only documents - - -

HER HONOUR: Do you have a copy to show - - -

MR KATZ: I do. Your Honour will recall that before Ms Graham's arrival I filed in Court an affidavit of service and the affidavit of service deposes to having served the affidavit of 10 February on Ms Graham. I understand that she may not actually have seen the document. The only copy that I have is one on which I have scribbled, but I am certainly happy for her to have my copy of it.

MS GRAHAM: Certainly, your Honour, I have not been served with such a document and should Mr Katz wish to pursue the fact that I have been served, I would wish to question the person who has filed affidavit of service as to how the document was, and if it was properly served.

HER HONOUR: You are in Court at the moment, Ms Graham. That usually is sufficient. Do you not wish to deal with this matter or not?

MS GRAHAM: I do wish to deal with it, your Honour.

HER HONOUR: Very well.

MS GRAHAM: Your Honour, as I am aware, I did receive one summons in fact from Mr McDonnell, along with an affidavit saying that he had sent me a letter which I had not received. Now, that letter which I have a copy of, along with his affidavit and summons, in that letter he says that he denies that the Court has jurisdiction by virtue of section 75(iv) of the Constitution given that I reside in New South Wales and that two of the defendants in the State of New South Wales and a natural person also residing in New South Wales. With regard to that, your Honour, I say that never minding that, the State of Queensland is a State - - -

HER HONOUR: Do not go into the argument at this stage. You do not have to answer the argument until Mr Katz has put it. The question is do you have any evidence that you want to call?

MS GRAHAM: That will depend on how far your Honour would wish to take the matter today.

HER HONOUR: It is a question only of jurisdiction today. That is all - - -

MS GRAHAM: Only jurisdiction; so you will not look at the urgent interlocutory orders sitting on the file?

HER HONOUR: That is not before me, I am afraid. It is not before me and, as far as I know, it has not been served.

THE DEPUTY REGISTRAR: The summons has not been issued, your Honour. It was delivered some time during the vacation with an indication that it would not be issued until after the vacation and the plaintiff has not returned to discuss the amendments which she was seeking to make.

HER HONOUR: Your summons has not been issued, so it cannot - - -

MS GRAHAM: Your Honour, the case there is that I attempted to have that dealt with on 21 December 1994.

HER HONOUR: Whatever be the situation with respect to it, I cannot deal with it today.

MS GRAHAM: When will it be dealt with?

HER HONOUR: You will have to go and file it, whatever - - -

MS GRAHAM: This is what I have attempted to, your Honour, and Mr Peter Ryan, the acting Deputy Registrar at the time, at 21 December, refused to file it. He said that it would have to wait until 30 January. Now, on 20 January I was informed by the Deputy Registrar here that it would be best to leave it until 20 February when the Court would be sitting here in Sydney. Now, it is an urgent interlocutory application, your Honour. I am seeking for time for service to be abridged. The solicitors and counsel for both Queensland and the State of New South Wales are here today.

HER HONOUR: You can make that application once the jurisdictional point has been dealt with, because if the Court has no jurisdiction, then there is nothing further that can be done.

MS GRAHAM: May it please the Court.

HER HONOUR: If it has got jurisdiction, you can make your application. But I cannot deal with it at this point. Mr Katz.

MR KATZ: If your Honour pleases, I have prepared a written outline of my submissions, together with a bundle of supporting materials. I have one for your Honour and one for the Court Reporting Service and I have one for Ms Graham as well.

MS GRAHAM: May I inspect those before they are handed up, please?

HER HONOUR: Certainly.

MS GRAHAM: Thank you. These do not seem to be the same. I am just wondering exactly how - - -

MR KATZ: I regret very much that Mr McDonnell has left since he has settled the supporting materials. In each case there is an outline of submissions by me and, as I understand it, a series of cases in the same order, in each case, which just follow the order in which they appear in my submissions.

MS GRAHAM: This is the same as this, is it?

MR KATZ: Yes, it is.

MS GRAHAM: So it is just three sets there and one for me?

MR KATZ: Yes, one for you, one for Her Honour and one for the Court Reporting Service.

HER HONOUR: Thank you. Yes, Mr Katz.

MR KATZ: If your Honour pleases, Order 11 rule 5(a) of the Rules provides that:

A defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion -

(a) to set aside the writ or other originating process;

The intent of the rule is to permit a defendant to object to the competency of the plaintiff's proceedings in advance of appearing. The two summonses which are before the Court were issued in reliance on that order.

If your Honour were to go to the writ of summons in the matter, the endorsement begins by asserting that the matter is one within the original jurisdiction of the Court. I leave aside any reference to the exclusivity of the alleged original jurisdiction:

The matter is one within the original.....jurisdiction of the Court and the facts upon which this allegation is based are as follows:

(a) The matter is one arising under treaties hence is a matter in which the High Court has original jurisdiction by virtue of Section 75(i).....

(b) The matter is one between States and between residents of different States and between a State and a resident of another State hence is a matter in which the High Court has original jurisdiction -

there is a typographical error. That is supposed to be "75(iv) of the Constitution". So there are two paragraphs relied upon as founding the Court's jurisdiction: 75(i) and 75(iv). In the written submissions which I have handed to your Honour I deal with them in the reverse order, dealing with 75(iv) first.

The allegation that the matter is one between States is, in my submission, impossible to sustain. Queensland and New South Wales are both parties to this proceedings but on the same side of the record, so it could hardly be said that the matter is between those two States. As to the allegation that the matter is one between residents of different States, the authorities which are well known and, indeed, which have been followed by your Honour on one relatively recent occasion, is that a matter is only one between residents of different States when there are not on both sides of the record individuals who are residents of the same State. Perhaps if I can remind your Honour of Watson and Godfrey v Cameron, which is the first of the cases in the bundle. This was a case in which there were three parties in total, all of them individuals, two plaintiffs, one defendant. One plaintiff and one defendant were both residents of New South Wales and the other plaintiff was a resident of Victoria. It was held by the Full Court of the High Court that there was no original jurisdiction under section 75(iv) in the circumstances. It may be appropriate to refer to what Justice Isaacs had to say at page 448 in the report because it does, in effect, foreshadow one aspect of this very matter. His Honour said:

I agree that this is not an action between residents of different States. If Mr. Eager's argument were right, it would lead to an alarming extension of the jurisdiction of this Court. All that a plaintiff would have to do would be to see that one of the plaintiffs was a resident of a different State from one of the defendants, and he could then join with himself any number of residents of the same State as that defendant and could even make the State of which he himself was a resident a party.

Your Honour, Bateman's Case in 1978 was to similar effect, again a decision of the Full Court, and I have included in the bundle your Honour's decision in Rochford v Dayes [1989] HCA 17; (1989) 63 ALJR 315, and at page 316 in the second column - - -

HER HONOUR: It was a different point, though, in Rochford, was it not?

MR KATZ: It was in this sense, that the parties were not all individuals. In addition to there being individual parties, there was the interposition of a company and that does take the matter somewhat beyond the situation which was dealt with in Watson v Cameron, but in any event, as your Honour said, at 316, second column, letter B:

The issue raised in the present case is whether the preposition "between" in the expression "between residents of different States" in s 75(iv) signifies a necessary distribution of parties on opposite sides of the record or whether it signifies the necessary and only permitted distribution of parties. Either meaning, but no other, is, I think, fairly open as a matter of ordinary language. The first meaning was unanimously rejected in Watson and Godfrey v Cameron -

and then your Honour set out an extract from the reasons of His Honour Justice Higgins, referred to Bateman's Case, referred then to Crouch v Commissioner for Railways, expressed some doubt about the compelling nature of the reasoning in Watson and concluded, opposite letter G:

However, their Honours there made no mention of matters "between residents of different States", and the meaning of those words has been determined by authority which I am bound to apply and which compels a conclusion that the proceedings as presently constituted are not a matter "between residents of different States".

Your Honour, that sets out the criterion of jurisdiction for relevant purposes.

Then the next matter which is certainly settled by authority is this, that where a plaintiff wants to rely on this aspect of paragraph 75(iv) it is incumbent on the plaintiff to prove affirmatively that one has an absolute diversity of residence of individuals. I have set out in paragraph 5 of my submissions a stream of authority from 1911 through to 1984 in which individual Judges of this Court have established that the burden of proof is upon the plaintiff to satisfy the diversity requirements in 75(iv). If I may say so, the point seems so simple that it is unnecessary really to take your Honour to the individual authorities in the matter.

The submission which I first make, then, is that dealing with this aspect of the matter, as there is no evidence on the part of the plaintiffs proving affirmatively that there are not on both sides of the record individuals who are residents of the same State, the application on behalf of Mr Connors must necessarily succeed. It simply fails by reason of a want of evidence on the part of the plaintiffs as to the residence of the individual parties.

HER HONOUR: I am just wondering about your relief. Is the consequence of what you say that the action fails against just the individual parties?

MR KATZ: It would have been open, I suppose, to the remaining defendants themselves to have taken the point in addition to the points being taken by New South Wales and Connors. They have chosen not to do so, perhaps on the assumption that if the proceedings were dismissed as against New South Wales and Connors, they would be competent as against the remaining defendants.

HER HONOUR: Yes. Well, you do not argue otherwise?

MR KATZ: I make no submission on behalf of Queensland and the two individual defendants who, it would appear from the writ, are residents of Queensland, namely Hamilton and Vachon. I said to your Honour at the outset that I had been asked to mention the matter on their behalf and to say that they would submit to whatever order the Court might make on the applications of New South Wales and Connors.

HER HONOUR: Thank you.

MR KATZ: Your Honour, my first submission then on this aspect of the matter is that the application of Mr Connors must succeed by reason of a failure on the part of the plaintiffs to put on evidence as to the residence of the individual parties to the matter.

In paragraph 7 of my outline I make a further submission which is that if it is not incumbent, contrary to all the authorities thus far, on the plaintiffs to establish the necessary diversity, then your Honour would infer from the writ itself and from the evidence put on by the defendants that at the time of the issue of the writ Ms Graham was a resident of New South Wales and Mr Connors was a resident of New South Wales, so that the outcome is identical to that which it would have been if one had applied the test in Dahms and the other cases.

If I could take your Honour to the writ again for a moment your Honour will see that the writ concludes by a statement that:

This writ was issued by the plaintiff Barbara Anne Graham in person, Computing and Information Management Consultant, mother and rightful guardian of the infant plaintiffs, who resides at 47 May Street, St Peters, 2044 and whose address for service is at the same place.

So that the allegation was that the first-named plaintiff at least was a resident of New South Wales at the time of the issue of the writ. The writ also asserts, immediately under the style of cause that Mr Connors is:

of 1st Floor, 258-262 Illawarra Road, Marrickville -

And I have read to your Honour the affidavit - - -

HER HONOUR: Where do I find that?

MR KATZ: I am sorry. If your Honour would be good enough to go to the first page of the writ of summons, immediately under the style of cause, one has the reference to Her Majesty, and then one finds the names of the addressees of the writ: To the Crown Solicitor, The State of Queensland and an address, the State of New South Wales, Hamilton and then:

Michael G. Connors of 1st Floor, 258-262 Illawarra Road, Marrickville -

I have read to your Honour also the evidence of Mr McDonnell to the effect that Mr Connors migrated to New South Wales in 1965 and has lived here continuously since. So my submission is that your Honour would be satisfied, in any event, that at the time of the issue of the writ there were on both sides of the record individuals who were residents of New South Wales. That would mean, in accord with Watson's Case and Bateman's Case, applied by your Honour in Rochford, that there could not be jurisdiction under this arm of section 75(iv).

Now, if I may turn to the third of the aspects of jurisdiction which is alleged in the writ under 75(iv), namely that the matter is one between a State and a resident of another State, my first submission is that a matter is only one between a State and a resident of another State when there are not on opposite sides of the record a State and an individual who is a resident of that State. Indeed, that was one of the matters to which his Honour Justice Isaacs was adverting in the reasons in Watson's Case to which I took your Honour at the outset.

I further submit that just as in the second of the three parts of 75(iv) it is incumbent on the plaintiff to prove the relevant matters, it is incumbent on the plaintiff to prove the relevant matters here, that is to say to prove that none of the plaintiffs are residents of either of the States named as defendants. Well, the plaintiffs must fail if that submission be accepted because, of course, the plaintiffs have put on no evidence whatsoever, but if, contrary to that submission, the matter can be determined otherwise than on the basis of affirmative proof from the plaintiffs, my submission is that your Honour would simply infer from the writ that at least the first-named plaintiff was a resident of New South Wales at the time of the issue of the writ. She asserted that to be the case in the penultimate paragraph of the writ itself.

Your Honour, for those reasons, the submission is that there can be no jurisdiction here under 75(iv) of the Constitution, either focusing on that aspect which deals with individuals or on that aspect which deals with suits between individuals and States.

There is also the allegation in the writ of jurisdiction based on 75(i) of the Constitution and I begin to deal with that in paragraph 11 and following of the submissions which I have handed to your Honour. Could I take your Honour first to the extract of evidence from the Royal Commission on the Constitution. This was evidence given by Mr Dixon of Kings Counsel on behalf of the Bar of Victoria. I am reading now from the left-hand column of page 785, the first complete paragraph:

Section 75 gives the High Court jurisdiction in all matters arising under any treaty. More controversies in relation to the provision of treaties have arisen during the last seven years as a result of the various peace treaties than perhaps are likely to arise again, but no one yet knows what is meant by the expression "matter arising under a treaty." The word "matter" refers to some claim the subject of litigation. It must, therefore, be a claim of legal right, privilege, or immunity. Under a British system, the executive cannot, by making a treaty, regulate the rights of its subjects. A state of war may be ended or commenced and the rights and duties of persons may be affected by the change from one State or another; but this results from the general law relating to peace and war, and not from the terms of the treaty. If a treaty is adopted by the legislature and its terms are converted into a statute, it -

and then I interpolate the word "is"

the statute and not the treaty which affects the rights and duties of the persons.

Now, although Mr Dixon did not say so, it would appear that the inevitable inference from that sort of approach is that section 75(i) of the Constitution was redundant and had no work whatever to do. Indeed, that does, I must say, seem to have been the outcome of one of the only two cases that appear ever to have been decided on the operation of 75(i), and that is the case that I mention in paragraph 12 of my outline and of which your Honour has a copy, a decision of Chief Justice Miles of the Australian Capital Territory Supreme Court in 1993, Reg v Donyadideh.

That was a case in which accused persons were charged with crimes under a Commonwealth statute and an issue arose as to whether or not the Australian Capital Territory Supreme Court had jurisdiction to entertain the criminal charges and beginning at page 3 in the report which your Honour has, his Honour began to discuss the question whether or not the relevant prosecutions could be said to be matters arising under a treaty. The Act in question was the Crimes (Internationally Protected Persons) Act (Cth). His Honour mentions at page 3, immediately under the hearing "Matters arising under a treaty" that the offences were created by that Act. He mentions, on page 4 in the first complete paragraph, that section 7 of that Act "gives approval to the ratification by Australia of" a particular Convention. He mentions, in the next paragraph, that one of the subsections of the Act provides that "an expression used in the Act and in the Convention has, in the Act, the same meaning as in the Convention". Then he sets out provisions of the Convention, and at the very bottom of page 4 he says:

The only direct authority on the precise question is Bluett v Fadden -

a decision of Justice McLelland sitting in Equity in the New South Wales Supreme Court in 1956. Then Chief Justice Miles sets out an extract from the reasoning of Mr Justice McLelland at the top of page 5. Mr Justice McLelland's reasoning appears in the second quoted paragraph on page 5:

It is the legislation which creates the rights which are justiciable and I am of opinion that, having regard to this fact, the rights can only be said to arise under the legislation and cannot be said to arise under the treaty.

I may say that was very much the approach taken by Sir Owen Dixon in the evidence that I have referred your Honour to. Then Justice McLelland, seeking to give some meaning to the words of 75(i) said:

Section 75 must, I think, be taken to refer to cases where the decision of the case depends upon the interpretation of the treaty. In such cases, the matter in question arises under the treaty.

Now his Honour Chief Justice Miles in the last two lines on page 5 points out that that attempt by Justice McLelland to convert the words "arises under a treaty" into the words "involves the interpretation of a treaty" cannot stand with subsequent High Court authority. His Honour refers to Felton v Mulligan and says:

Although Felton v Mulligan was not concerned with the meaning of the phrase "arising under a treaty" but with the phrase "arising under any laws made by the Parliament".....the meaning ascribed by the High Court to the words "arising under" is made clear and it is, in my view, contrary to the meaning which was ascribed to those words in Bluett v Fadden. It is not enough that recourse is to be had to the treaty in order to decide the matter in issue. What is necessary is that the right, duty or liability in question "owes its existence" to the treaty or depends upon the treaty for its enforcement, or has its source in the treaty.

If one looks to the source of the liability to be convicted of an offence under s 8 of the IPP Act, that source is, in my view, to be found in the Act itself and not in the treaty. The treaty creates no rights, duties, obligations or liabilities which are justiciable in Australian law. Whilst the terms of the IPP Act itself require that recourse is to be had to the treaty for the purposes of construction and interpretation (and in particular for the meaning of the term "internationally protected person"), that does not mean that a prosecution for an offence under the Act is a matter arising under the treaty.

I conclude, contrary to Bluett v Fadden, that the charges under the IPP Act do not arise under a treaty and therefore fall outside s 75(i).

I have included in the bundle a copy of Bluett v Fadden as well, but there is nothing, in my submission, in Bluett v Fadden of any significance beyond the extracts to which I have already taken your Honour, as they were set out in Chief Justice Miles' reasoning.

In paragraph 14 of my outline I seek to suggest a possible construction of 75(i) which would not lead to a conclusion of redundancy. The submission is that the notion of arising under in 75(i) may be given a more expansive definition than the definition which had been given to that notion in section 76 of the Commonwealth Constitution. As I submit in paragraph 14, the construction would be that provided a treaty were the ultimate indirect source of some legal right, then it could be said that the right arose under the treaty, nonetheless, though, the direct source of the right would be a statute which implemented the treaty. So that one would not require the right to arise directly under the treaty; it would be sufficient if it were indirectly arising under the treaty.

In paragraph 15 I have set out some general rules of construction of statutes which, in my submission, would permit the construction which I have submitted in paragraph 14 is appropriate to be adopted, to be adopted. If it be the case that a matter arises under a treaty if one seeks to vindicate some statutory right, the relevant statute having been enacted to implement the treaty, the question then arises in the present case - what treaties, what statutes? If one goes to the writ itself - I have taken your Honour to paragraph 1 of the writ - perhaps it would be convenient if your Honour were to look at the remaining four numbered paragraphs of the writ. Your Honour will see that the claim is for - I turn first to paragraph 2:

Exemplary and/or aggravated damages to the value of $1,000,000 (one million dollars) for each plaintiff for each week of separation and breaches of rights afforded by The constitution of the Commonwealth of Australia and/or Magna Charta and/or international treaties as is to be set out in a separate Statement of claim -

Then, paragraph 3 which is restricted to Ms Vachon, whom I understand to be a solicitor:

damages arising from negligence and/or breach of contract and/or unauthorised removal of funds from trust account as is to be set out in a separate Statement of claim -

That one does not bear at all directly on New South Wales or Mr Connors. Then 4, excluding Ms Vachon, but now dealing with among others New South Wales and Connors:

damages for losses incurred and damage to career as a result of their actions and/or negligence and/or defamations and/or deprivation of liberty and/or breach of privacy as is to be set out in a separate Statement of Claim -

Finally:

All future costs of restoration of family fabric and structure including family reunification and emotional rehabilitation.

In those four paragraphs, relevantly three so far as New South Wales and Mr Connors are concerned, the only reference to treaties is in paragraph 2 and there is no specification either of any treaties or of any statutes claimed to implement those treaties, claimed to give rise to statutory causes of action.

Since the issue of the writ and the issue of our summonses, the Attorney-General for New South Wales has received from Ms Graham a notice purporting to be a notice under section 78B of the Judiciary Act 1986 , and in that notice there is specification of the treaties on which reliance is placed. As we now are aware, there are three treaties mentioned - I have mentioned them at the end of paragraph 17 in my written outline. There is the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, and the Convention on the Rights of the Child.

If the construction which I have submitted as appropriate to 75(i) - the alternative to that construction being a conclusion that 75(i) is redundant - if the conclusion which I have submitted be correct, then the position would be this, that if there were some domestic statute creating statutory causes of action, the creation of which was intended to implement international obligations under those treaties, then this Court would have jurisdiction under section 75(i) of the Constitution. But, the position is this, that there are no Australian statutes creating causes of action in implementation of Australia's obligations under any of those three international instruments. I have mentioned specifically in paragraph 18 of my submissions the possibility that the Human Rights and Equal Opportunity Commission Act (Cth), may be such a statute and that it may be inferred that the plaintiffs propose to make out some statutory cause of action in reliance on that statute, in which case it would be, perhaps, arguable that their statutory causes of action arose under the three treaties that I have mentioned. Your Honour, this Court has expressly held that the Human Rights and Equal Opportunity Commission Act 1986 is not a statute implementing any of the scheduled international agreements to it and, I would infer, any other international instrument which may be subsequently declared under section 47 of that Act, as has been the convention on the Rights of the Child. I think your Honour has extracts from Dietrich's case, and it may be convenient if I first simply go - I am sorry, your Honour, the case was very lengthy and I only asked to have photocopied the juicy bits.

At page 360 in the reasons of his Honour Justice Toohey, his Honour says in the first complete sentence on that page:

The I.C.C.P.R. is now contained in Sched. 2 to the Human Rights and Equal Opportunity Commission Act (Cth). While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate and conciliate alleged breaches of rights contained in the I.C.C.P.R., it does not create justiciable rights for individuals.

The same view had been taken by others of their Honours. Your Honour, so far as I read your Honour's reasons, did not specifically advert to that aspect of the matter, but if I could take your Honour to the other references very briefly. At page 305 in the joint reasons of the Chief Justice and Justice McHugh, following the indented quotation, their Honours said:

Ratification of the I.C.C.P.R. as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the I.C.C.P.R. are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed.

This was in the context of a discussion about the Human Rights Act 1903 . It is plain, beyond doubt, that their Honours took the view that it was not right to conclude that the Human Rights Act implemented the international Covenant, and by parity of reasoning, it could not be said to implement any of the other international instruments which are either scheduled to it or declared under it.

At page 321 in the reasons of his Honour Justice Brennan, immediately following the setting out of a particular provision of the Covenant, his Honour said:

this provision of the Covenant is not part of our municipal law -

Although he said:

it is a legitimate influence on the development of the common law (10).

That is the sentence which immediately precedes footnote (10), and I focus specifically on the words, "this provision.....is not part of our municipal law".

At page 348 in the reasons of his Honour Justice Dawson, immediately following the quotation in the second half of the page, his Honour says, dealing with a specific provision of the Covenant:

Article 14(3)(d) has not been enacted as part of the domestic law of Australia -

Again, in a context in which everything revolved around the Human Rights and Equal Opportunity Commission Act in various aspects of the appellant's argument. So that in my submission, once one is able to identify those treaties upon which reliance is placed by the plaintiff, one can see that there is no domestic statute implementing those treaties, and it follows, in my submission, that there can be no jurisdiction under section 75(i) in consequence. Even if what I have described as an expansive construction of 75(i) were to be accorded to it, one would need to find some statutory cause of action which is simply absent. For those reasons, your Honour, it would be my submission that the Court has no jurisdiction in the matter, at least so far as concerns New South Wales and Mr Connors. I make no submission about the others. So that, the relief sought in the summons in each case is that the writ be set aside so far as it concerns the relevant defendant.

Perhaps I should say, finally, that I notice that in Rochford v Dayes, your Honour made an order of a slightly different character than that; at the bottom of page 316, at the top of page 317, the order which your Honour thought appropriate, as I read it, is that the entire proceedings be dismissed unless the plaintiff, within a certain period of time, elected to proceed only against those defendants - - -

HER HONOUR: That is what I asked you before.

MR KATZ: I am sorry. I must have misunderstood what your Honour - - -

HER HONOUR: Yes; whether it was appropriate simply to dismiss as against the individuals.

MR KATZ: I am sorry. I misunderstood then, your Honour's question. If I may say so, with respect, it appears to me that either would be equally efficacious, but your Honour did specifically choose in Rochford v Dayes to make - - -

HER HONOUR: The difficulty, you see, is whether you can hypothesise that there is an action left if you eliminate two.

MR KATZ: I would hardly want to persuade your Honour that what your Honour did in Rochford v Dayes was wrong if it suits my client's interest just as effectively. So, in the circumstances, it may be that - - -

HER HONOUR: I wonder if that was the order made in one of the other ones as well?

MR KATZ: Your Honour did say that was an order of the sort which was made in Cox v Journeaux, which your Honour remembers is one of the cases about whether a corporation can be a resident of a State.

HER HONOUR: Yes. I think that is where it came from.

MR KATZ: Perhaps I might simply read. Your Honour said:

The proceedings as presently constituted not being a matter "between residents of different States" the appropriate order is, as in Cox v Journeaux, that the suit be dismissed unless the plaintiff, within 21 days, by notice filed in the Registry and served upon the defendants elects to proceed only against the first and second defendants.

The third defendant in this case being a corporation.

HER HONOUR: Yes.

MR KATZ: If your Honour pleases, those are my submissions in-chief on the jurisdictional aspects of the matter.

HER HONOUR: Yes, thank you, Mr Katz. Yes, Ms Graham.

MS GRAHAM: Your Honour, may it please the Court, I would have to say that I am surprised at this great bundle that has been produced here this morning at no notice to me whatsoever, to be able to answer Mr Katz's reply, and if I am required to do so, I should seek time and opportunity to prepare a proper reply to his address.

HER HONOUR: How long do you want?

MS GRAHAM: That will depend on how long your Honour may wish to give me in consideration of other matters that I have before me in other courts. I do have matters before the Federal Court and have orders to comply with there in view of a hearing on 26 June. That matter has partly arisen out of this matter as has another matter in the Supreme Court. So, I can evidence today that those matters are in progress.

HER HONOUR: You do not require more than a week, do you?

MS GRAHAM: Most certainly, your Honour. Your Honour, I am not trained in law. I do not propose to put any suggestion forward that I am trained in law.

HER HONOUR: But, Ms Graham, you asserted jurisdiction when you commenced this action. I am to take it that you did not assert it capriciously. I am to take it that you did that bona fide and having given consideration to the matter.

MS GRAHAM: Your Honour, if it may please the Court, I will address that subject quite simply. I will not go into the verbal acrobatics of Mr Katz. As I said, if I am required to answer Mr Katz's argument, I would require time. However, by the very fact that we are interpreting the Constitution at the moment, the matter is certainly within the jurisdiction of the Court.

HER HONOUR: The application is.

MS GRAHAM: Your Honour, I did look at Order 11 rule 5, and I noticed that that was the grounds on which the State of New South Wales and Mr Connors wish to have themselves removed from the action. If you see paragraph 10,995 point 5 of Butterworths High Court Service, under the subheading, "Abuse of process".

Setting aside a writ under r 5 is only appropriate if there is want of jurisdiction.

HER HONOUR: That is what is being asserted against you.

MS GRAHAM: Your Honour, under section 76(i) of the Constitution, the interpretation of the Constitution is within the original jurisdiction of the Court as I understand it. Also, there is a matter of section 117 of the Constitution regarding the rights of residents of States within this matter.

HER HONOUR: You did not raise that in your writ. Let me assure you of this, Ms Graham. Section 76(i) ensures that there is jurisdiction to hear the application to strike out. It does not go beyond that if it is decided that there is no jurisdiction. Secondly, you do not assert the jurisdiction arises by virtue of section 117 in your writ. At the moment, the matter is being approached on the basis of your writ, yhe defendants in question having elected to challenge the jurisdiction, rather than appear. You should answer their arguments based on section 75(i) and 75(iv) of the Constitution. If you cannot do it today, I am prepared to give you time. You should, however, realise that you put yourself at the risk of costs orders. I would be minded to grant you a week, but I do not see why it should take more than that. If you were legally represented there would be no occasion for an adjournment. I am prepared to give you one week if you require it, but I should warn you that if you are unsuccessful, that will simply double your costs - double the costs that you may be ordered to pay.

MS GRAHAM: Yes.

HER HONOUR: In this regard, I do not ask why you are not represented by a lawyer; but you cannot be put in a better position that you would be if you were represented by a lawyer. So, to some extent, you achieve that by getting a week's adjournment, if you want it, but of course, at a risk.

MS GRAHAM: Your Honour, I am not a person who can afford to have a lawyer to come here before you. I have just spent the past approximately two years attempting to study sufficiently to enable me to come before you today, as I am. I dare not leave my children in the position they are in any longer.

HER HONOUR: Very well. What does that mean?

MS GRAHAM: I have to rely on your expert knowledge in the law - - -

HER HONOUR: No, you cannot rely on my expert knowledge, Ms Graham. I am here to judge the matter, not to assist or advise you.

MS GRAHAM: But I dare say I should not be deprived of my rights of frank law, which is the right of any citizen - any loyal subject of the Crown to come before one of Her Majesty's judges without benefit of attorney.

HER HONOUR: You are here, without benefit of attorney, and the question is, do you want a week's adjournment, or do you want to put your arguments now?

MS GRAHAM: I will put some things simply before you at the moment, but I will require time to reply to what Mr Katz has brought before you.

HER HONOUR: What time do you require?

MS GRAHAM: I have to address the Supreme Court next Friday on the 24th. I have to prepare for that before then. That would leave me approximately one Saturday, Sunday, and be here on the following Monday, which is not a week. Then I have other orders from the Federal Court to comply with, as well.

In terms of the United Nations Convention on Civil and Political Rights alone, I am entitled to a fair hearing and I consider - - -

HER HONOUR: The question is where you are entitled to have it. Not whether you are entitled to a fair hearing; but whether you are entitled to have it in this Court.

MS GRAHAM: As Mr Katz did point out, the treaties there were defined in the section 78B notice. I recall, although I do not have it with me here today, but you will find under section 38 of the Judiciary Act, defines where matters arise directly under treaties. As I understand it, that is where treaties are in effect but have not been legislated into statute law. Whereas, where they are legislated into statute law then an action arises outside of section 75(i) of the Constitution. Where the treaties are there and in effect by virtue of section 47 of the Human Rights and Equal Opportunity Commission Act, then that is a matter which arises directly under a treaty because there is no statute law under which it can be determined, also where treaties are to be interpreted where they have not been interpreted previously or there is no statute law in order to interpret them. This is what I understood.

HER HONOUR: You must take account of the fact that unless there is some legislative Act, they do not form part of municipal law at all.

MS GRAHAM: As regards section 75(iv) of the Constitution, the State of Queensland is obviously a State, and I am a resident of another State. Also, my children are. The other defendants in Queensland - - -

HER HONOUR: Are your children resident in New South Wales?

MS GRAHAM: I believe that, in fact, they are at the moment, and they have always been residents of New South Wales, and their fathers have always been residents of New South Wales - perhaps one, not always, but certainly has been throughout their lives.

The State of New South Wales, it will be able to be evidenced, acted in concurrence with the State of Queensland in the actions for which I am suing for myself and my children. Mr Connors, at the time, was an officer of the Crown in right of New South Wales and he was one of the persons - - -

HER HONOUR: Ms Graham, you really should confine yourself to the jurisdictional issues.

MS GRAHAM: Yes. Your Honour, where the State of New South Wales is involved in the action with the State of Queensland to that nexus, it would not seem proper not to join the State of New South Wales with the State of Queensland in the action. It is as an officer of the Crown in right of New South Wales that I am suing Mr Connors in that respect. He was an individual whom I believe was acting in excess of his authority.

I have also had to consider the following there - that the State of New South Wales, apart from the State of New South Wales acted in concurrence with the State of Queensland - the Crown, in right of New South Wales, when it is a defendant in the matter, whether now, let us say, if it were put to the Supreme Court of New South Wales, then Her Majesty's judges of the Supreme Court of New South Wales are officers of the Crown in right of New South Wales, whether in personae designatae or otherwise. It therefore follows that there would be conflict of interest there for an officer of the Crown in right of New South Wales to hear a matter where the State of New South Wales is being sued and is a defendant. This would also apply to any other State which were a defendant in the matter, and there would be considerable inconvenience for the matter to be heard in other States by other States Supreme Courts, I am sure.

HER HONOUR: Ms Graham, we are not concerned with the convenience. We are concerned simply with the application of section 75 of the Constitution.

MS GRAHAM: The matters concerning the State of New South Wales cannot, as a whole, be separated from the State of Queensland. The question arises, if I may put it simply in lay terms, perhaps, as to whether a person, natural or corporate, can determine a matter in which itself is a party. Therefore the intent, interpretation of section 75(iv) of the Constitution, may require, while this is not clear, for matters between a State and a resident of that same State to be in the context of section 75(iv) of the Constitution.

Basically, can we ask a criminal, if it were a criminal matter - and these are torts that I am suing for in part - to have jurisdiction to hear and determine the matter as to whether itself is guilty, and what sentence or otherwise should be imposed. I am sure that the original jurisdiction of the High Court cannot be diminished. There must be somewhere where there is jurisdiction to hear a matter against a State, even though it be between the same State as I am resident of. Otherwise, it seems to be that it would simply be left in a kind of limbo, if I may put it so bluntly in lay terms.

HER HONOUR: Ms Graham, there is no impediment upon the institution of proceedings in State Supreme Courts simply because the State is a party to the action.

MS GRAHAM: As however, your Honour, the matter cannot be separated from the Queensland matter.

HER HONOUR: There is no impediment upon your bringing proceedings in the State Supreme Court of the kind that there is in the High Court.

MS GRAHAM: This is why I had asked, on the application for urgent interlocutory orders, I think that is where I have asked that the Court directs as to what the proper jurisdiction is.

HER HONOUR: Until it is decided whether this Court has any jurisdiction, there is no point in looking at other matters, Ms Graham. As I have told you, providing you have causes of action, there is no impediment upon the institution of proceedings in State Supreme Courts.

MS GRAHAM: Your Honour, I still seek a proper amount of time to reply to - - -

HER HONOUR: What do you call a proper amount of time?

MS GRAHAM: I would have to read through and study everything that Mr Katz has put before us today. That will require time in itself. Then I will have to check on what he has left out.

HER HONOUR: What do you call a proper amount of time?

MS GRAHAM: If I am being required to undertake a, what amounts to a degree course in the subject, that is what I consider a proper amount of time.

HER HONOUR: We are not giving you that sort of time. It is your action - - -

MS GRAHAM: I do note, though, that for the State to be holding children against the law is against section 25 of Magna Carta 1297, which we do have by right of the Constitution of the Commonwealth of Australia, and by right of the facts that - - -

HER HONOUR: Ms Graham, I am prepared, in view of the fact that you are before the Supreme Court this Friday, is it?

MS GRAHAM: Yes, your Honour.

HER HONOUR: How long will you be in the Supreme Court? What is the nature of that matter?

MS GRAHAM: The nature of that matter is it is a matter arising out of this matter. I am sure I would have been more prepared today, had I not been in the Supreme Court over the last two months throughout the vacation, because of the financial damages which have already occurred through the actions of the State of New South Wales and the State of Queensland, I need to put a final reply before the court next Friday.

HER HONOUR: I am prepared to allow you, as I have said, a week. If you tell me you cannot use this week, I can extend it until Friday of next week, which I think is 3 March, but beyond that I will not go.

MS GRAHAM: I have a considerable amount to do for the Federal Court before then, your Honour.

HER HONOUR: Before 3 March?

MS GRAHAM: I will just find the orders of the Federal Court. However, my main concern at the moment is that those children be released.

HER HONOUR: Until it is clear that this Court has or has not jurisdiction, that is a matter you will have to take up with a court that clearly has jurisdiction.

MS GRAHAM: Apparently, the State of New South Wales does not have any jurisdiction there.

HER HONOUR: I do not want to go into the details of it, Ms Graham. It is not appropriate to go into the details. How long do you want? I can give you until next Friday week. Is Friday week, 3 March, appropriate? Have you got some other commitment that makes that impossible.

MS GRAHAM: If your Honour would allow me to find the Federal Court orders. Would it be possible for me to put an application before you at the moment to amend the written application, so to speak, to include a writ of mandamus on a Commonwealth officer, that is, the executive director of the Human Rights Commission here in Sydney.

HER HONOUR: No. I am not hearing an application for amendment today. You may take whatever course is open to you under the rules as you may be advised, but that is as far as it goes.

MS GRAHAM: Your Honour, I wonder if I may have a transcript of Mr Katz's argument, in order to - - -

HER HONOUR: You can obtain it in the ordinary course.

MS GRAHAM: I wonder if your Honour would order it for me.

HER HONOUR: No. You can deal with those matters in the ordinary - Ms Graham, the Court is in no position to give assistance to people. We sit here to judge issues, not to provide assistance to individual litigants. In that event, we would simply compromise our position. It cannot be done. You will have to do whatever is open to you under the rules. Have you found the Federal Court's order?

MS GRAHAM: Yes, your Honour. I have a date of 17 March for two items.

HER HONOUR: Very well, there is no reason why you cannot be here on 3 March?

MS GRAHAM: Unless I am unwell. I do have a disability, your Honour. In that case, I would ask for an afternoon listing if possible.

HER HONOUR: You realise, of course, that you are at the risk of costs? Very well, I will list it at 2.15 pm on Friday the third.

MS GRAHAM: Would I take it, your Honour, that, without saying, that the treaties published along with the Human Rights Commission Act have no effect and if this is the case, why are we required to legislate and to act in accordance to say they have effect?

HER HONOUR: Ms Graham, I am not here to answer questions. It is up to you to make your arguments. I am prepared to adjourn the matter until 2.15 on 3 March to enable you to put your reply to Mr Katz, and that is what I propose to do at this stage.

Mr Katz, it is a matter for you, whether you wish to be present, or whether you consider your solicitor can sufficiently handle the matter.

MR KATZ: Yes, if your Honour pleases.

HER HONOUR: The Court will now adjourn until 2.15 pm on Friday, 3 March.

AT 12.55 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 3 MARCH 1995