Stubberfield, Application by B7/1996 [1996] HCATrans 244 (18 June 1996)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Brisbane

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No B7/96

JOHN RICHARD STUBBERFIELD

Application for Removal

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 18 JUNE 1996, AT 12.03 PM

Copyright in the High Court of Australia

HIS HONOUR: You are Mr Stubberfield?

MR J.F. HEALY: No, your Honour - solicitor with Georgeson and Co. I appear for the respondent, your Honour.

HIS HONOUR: Oh, yes. Yes, you are John Richard Stubberfield?

MR J.R. STUBBERFIELD: I am, your Honour.

HIS HONOUR: And you are the applicant in this matter.

MR STUBBERFIELD: Yes, your Honour.

HIS HONOUR: And you appear for yourself.

MR STUBBERFIELD: Yes, your Honour, I do.

HIS HONOUR: Yes. And Mr Healy, you have entered a conditional appearance in this matter.

MR HEALY: Yes, your Honour, just denying the jurisdiction of the Court to entertain the application.

HIS HONOUR: Yes, very well, thank you.

MR STUBBERFIELD: I say that has not been served on me, your Honour.

MR HEALY: I think that is probably correct, your Honour, but Mr Stubberfield does not have an address for service within a reasonable distance of this Registry.

HIS HONOUR: Yes. Well, in any event, you proceed, Mr Stubberfield.

MR STUBBERFIELD: I have prepared a written case, your Honour; put certain exhibits in with it - documents in with it. That is extracts of cases that I will be referring to.

HIS HONOUR: Yes, but your principal point is that there is no section 118 point involved in this case, Mr Stubberfield. How does section 118 of the Constitution become involved in the proceedings?

MR STUBBERFIELD: It is not - section 118 is really the expression, your Honour, that all subjects are entitled to have the law of Parliament enforced, and that is the point I am making. That comes expressly by section 118. Now, I quite realise that 118 is used for the - for a certain purpose. The rule of - - -

HIS HONOUR: Well, it is - one of its - - -

MR STUBBERFIELD: I cannot think. It is all down in my submissions, your Honour - written submissions. I cannot go to just odd places like this. I cannot work like this, unfortunately.

HIS HONOUR: Yes.

MR STUBBERFIELD: But basically what I am saying - and there is no doubt about this - the make of the Constitution - when you are interpreting a Constitution, you not only look at the sections, you look at the implications, and I notice I have just got a case of - a recent case of your own, your Honour, where you have said yourself that it is necessary to look at the background and the necessary implications of - - -

HIS HONOUR: That is probably Theophonous, is it?

MR STUBBERFIELD: Yes, it is, your Honour. But this is well known and understood, is it not?

HIS HONOUR: Yes.

MR STUBBERFIELD: I do not have to argue that point, surely.

HIS HONOUR: No, you do not.

MR STUBBERFIELD: No. Well, what I am saying is that without a shadow of a doubt, the Court of Appeal has repealed the statute in favour of this man.

HIS HONOUR: But does the Court of Appeal give a judgment in this matter yet?

MR STUBBERFIELD: I beg your pardon?

HIS HONOUR: The matter is under reserved - which matter are you talking about? You are talking about matter - - -

MR STUBBERFIELD: 140 - appeal 140.

HIS HONOUR: Now, that is under reserved judgment, is it not?

MR STUBBERFIELD: No, they have actually brought down the judgment now. They brought it down on Friday, which without a shadow of a doubt has been done to complicate this matter, and - - -

HIS HONOUR: Well, it certainly complicates matters, because - - -

MR STUBBERFIELD: Well, it certainly does, your Honour.

HIS HONOUR: - - - that is the first I have heard of it. But it makes your position all the more difficult, because you have got a judgment now, and the way you challenge that is by a special leave application, do you not? I mean, your - - -

MR STUBBERFIELD: No, your Honour. Your Honour must realise that special leave applications are a no-no. We are just not getting anywhere at all. You have just - - -

HIS HONOUR: Well, I know you are not getting anywhere, but the point is that you have got to show that there is - - -

MR STUBBERFIELD: A Constitutional matter.

HIS HONOUR: Well, more than a Constitutional matter; you have got to show that there is something pending in a Federal Court, and there is nothing pending in a Federal Court if they have handed down their decision.

MR STUBBERFIELD: Well - - -

HIS HONOUR: Well, sorry, not a Federal Court, but a State Supreme Court.

MR STUBBERFIELD: Well, there was, your Honour, when I made the application, and when - - -

HIS HONOUR: Yes, but - I mean, I know, but that is over now.

MR STUBBERFIELD: Yes, and that is what it has been done for, is it not, your Honour: to - - -

HIS HONOUR: I do not think you should attribute that motive, Mr Stubberfield.

MR STUBBERFIELD: Oh, it is just too much of a coincidence, your Honour.

HIS HONOUR: Well, no.

MR STUBBERFIELD: You do not - I asked for that matter to be adjourned. I filed and served a notice of motion setting out that it was my claim that there was a Constitutional matter to be determined. I did the proper thing. I asked for an adjournment in the notice of motion. My adjournment was refused. They have held it - it was heard on, I think, 25 March. As far as I recollect, the Constitutional matter was not determined by them, or was not heard by them. It was - what they heard and seem to have determined was the matters of - the specific matters of costs which were also involved, and they can do this under the Act, it seems. Now, as far as - - -

HIS HONOUR: But the problem is that quite apart from all the difficulties that you had in your way - and they were very formidable, in my view - the fact is that there is no longer any matter upon which section 40 can operate. There is nothing pending in the Court. To make an order now would be futile. The Court has given judgment. It is functus officio; it is over.

MR STUBBERFIELD: The Court of Appeal is functus officio.

HIS HONOUR: Yes.

MR STUBBERFIELD: Yes, your Honour, it is.

HIS HONOUR: Well, if you want to challenge it - - -

MR STUBBERFIELD: But it has not heard and determined the - it has not heard and determined the Constitutional matter - - -

HIS HONOUR: Well - - -

MR STUBBERFIELD: - - - and it is the Constitutional matter that I - - -

HIS HONOUR: Well, that may be, but the fact is that there is no - nothing further pending in the Court. As far as this Court of Appeal is concerned, the matter is at an end. Now, if you are to challenge what they have done, the only remedy, it seems to me, is that you have got to apply for special leave to appeal. Now, you say, "Well, it's very difficult to get special leave," and - - -

MR STUBBERFIELD: Well, it is impossible now.

HIS HONOUR: - - - if that is so - if that is so - you have no stronger ground for getting removal. The Court - if the Court would - the Court exercised the discretion under section 40 - and it would be a rare case, if one existed at all, where the Court would remove a matter if it was a matter the Court would not grant special leave in - so if we would not grant special leave, we would not have removed it.

MR STUBBERFIELD: Well, let me put it to you this way, your Honour. You have admitted this morning - and you made the statement this morning, which is common knowledge - that all subjects under the Constitution are entitled to live by the rule of law. We are entitled to know the law and have the law enforced by the Courts. The Courts have a duty, a Constitutional duty, to enforce statute law and the common law of the Commonwealth. Can we agree on that point?

HIS HONOUR: Well, it does not matter; that is your argument, and I understand your argument.

MR STUBBERFIELD: Well, you have agreed that this morning, and - - -

HIS HONOUR: That is your argument, and there is no doubt that Courts are bound by the law, and that Courts are bound by the Constitution. Now, where do you go from there? What is your next - that is the major premise; what is your minor premise? What is - who has breached the law? You say the Court of Appeal has not applied the law.

MR STUBBERFIELD: I am saying not only has the Court of Appeal not applied the law, but they have actually repealed the law to make declarations destroying the amenity of our property and chasing us - removing us from our own property.

HIS HONOUR: But that has got nothing to do with what happened in number 140 of 1995, or appeal number 140 of 1995. You raised all these matters in 218 of 1992, did you not?

MR STUBBERFIELD: That is right, your Honour, but - and this is why I say I should not have to work like this. I have prepared a case that sets all these matters down properly.

HIS HONOUR: Well, I am well aware - - -

MR STUBBERFIELD: There are two - well, I have got the documents here for you to go through it, your Honour, and it sets the whole lot down in a properly co-ordinated manner that I can - we can both - - -

HIS HONOUR: Well, hand it up to me and I will - - -

MR STUBBERFIELD: - - - we can both work from.

HIS HONOUR: - - - read it as quickly as I can. But - - -

MR STUBBERFIELD: Well, that is the - - -

HIS HONOUR: - - - I am familiar with these matters, because Deane and Toohey JJ and myself, on 10 May last year - not last year; in '94, I think it was - dismissed your application for special leave against 218 of 1992 of the Court of Appeal of Queensland.

MR STUBBERFIELD: That is correct.

HIS HONOUR: Well, if you will just sit down for a moment, I will quickly go through here. Well, I quickly read through that. There is nothing new in it. You have raised this sort of argument in other proceedings, including another matter recently where you raised 118 of the Constitution in the High Court.

MR STUBBERFIELD: That is correct, your Honour.

HIS HONOUR: Yes.

MR STUBBERFIELD: Well, this - 118 is the express statement by the Constitution that we have rights to the - have the law enforced.

HIS HONOUR: But it is not. It is not. If you go back to Quick and Geran you will find that the view they took of 118 was that it contains a Constitutional declaration in favour of interstate, official, and judicial reciprocity, which Parliament of the Commonwealth and the States may effectuate but they cannot prejudice. In lawyers' jargon, it was a conflict of laws provision.

MR STUBBERFIELD: That is correct, your Honour. That is the word I was trying to think of.

HIS HONOUR: Yes.

MR STUBBERFIELD: Yes. Well, what I - I - Smith v Geran was it?

HIS HONOUR: Quick and Geran. Quick and Geran.

MR STUBBERFIELD: Quick and Geran. That was an old case - - -

HIS HONOUR: They wrote the first book - - -

MR STUBBERFIELD: That was an old case - - -

HIS HONOUR: No, it is not a case. Quick and Geran were - - -

MR STUBBERFIELD: Oh, yes. It is a - - -

HIS HONOUR: They played - - -

MR STUBBERFIELD: Yes.

HIS HONOUR: They played a leading role in the - particularly Dr Geran - in drafting the Constitution, and they wrote the first text book on the Constitution back in 1903.

MR STUBBERFIELD: That is right. That is right. Yes, but, as Justice - I cannot remember the - - -

HIS HONOUR: But, look, could I just put this to you.

MR STUBBERFIELD: - - - has said - - -

HIS HONOUR: See, if your argument was right about 118, it would mean that every one of the several hundred thousand cases that are decided each year in Australia involve the interpretation of the Constitution.

MR STUBBERFIELD: No, that is not quite correct - correct, your Honour.

HIS HONOUR: Well, it would have to be. It would have to be.

MR STUBBERFIELD: No, not - with respect, your Honour, it would not. This - you have only got to look at - look at the facts of this case to see that this is something entirely different. Here, we have a situation where, without a shadow of a doubt, the Court of Appeal has made declarations declaring lawful use rights when, on the parties' own admission, and on the clear face of the court's own judgment, there were no such lawful non-confirming use rights and there could not be by statute.

HIS HONOUR: Well, that argument - - -

MR STUBBERFIELD: The statute prohibits them. So they - - -

HIS HONOUR: Your argument was rejected back in '94 by Dean and Toohey JJ and myself, and it is just really a re-run.

MR STUBBERFIELD: No, there is a - - -

HIS HONOUR: Mr Stubberfield, I ask you - I would implore you to give serious consideration to this course that you have embarked on about pursuing all these things. It - litigation destroys people.

MR STUBBERFIELD: It is destroying us, your Honour.

HIS HONOUR: Well, I - - -

MR STUBBERFIELD: And not - not only - - -

HIS HONOUR: Well, Mr Stubberfield, why do you not - assuming you have got losses, why do you not cut your losses and put an end to it and get on with your life?

MR STUBBERFIELD: Your Honour - - -

HIS HONOUR: Because, otherwise, you just become obsessed with this litigation, it is expensive, it is - and it just consumes people. It is - it - I will not say it breaks my heart, but it is - - -

MR STUBBERFIELD: Your Honour - - -

HIS HONOUR: - - - it does not - I - again and again we see litigants in person, in effect, butting their heads against orders of courts where they have really got no basis at all, and it is just waste of money and often the ruination of - - -

MR STUBBERFIELD: But we have got a basis, your Honour. We have got a basis and a right. As you said this morning, everyone has a right to the law, to have the law enforced.

HIS HONOUR: Yes, but somebody has to declare what the law is, and the courts - the Court of Appeal has declared that you - the right you claimed did not exist.

MR STUBBERFIELD: But the court - with respect, your Honour, the Court of Appeal, on its - on the face of its own document, shows that it declared wrongly or falsely. Now, a court has to give reasons.

HIS HONOUR: Mr Stubberfield, you said that and it gave - and you made a special leave application back in 1994, or maybe '93 - I cannot remember. We certainly disposed of it in May 1994. But we are dealing here with an application to remove a matter which has - which is no longer pending in the Supreme Court of Queensland. That is the beginning and end of the matter.

MR STUBBERFIELD: Well, it is - it is the removal matter, and it raises a Constitutional - and interpretation - - -

HIS HONOUR: But Mr Stubberfield, there is nothing to remove.

MR STUBBERFIELD: Now - - -

HIS HONOUR: There is nothing to remove.

MR STUBBERFIELD: Just - just let me say this, your Honour.

HIS HONOUR: Yes.

MR STUBBERFIELD: It raises a matter of interpretation of the Constitution. As such, it falls, by the Constitution within the original jurisdiction of this court. Now, I must, therefore, have a means of bringing it before - - -

HIS HONOUR: Well, Mr - either - you have still got that right - - -

MR STUBBERFIELD: - - - into the original jurisdiction.

HIS HONOUR: Either way. You have still got that right available to you, in which case you have got to institute a suit in the original jurisdiction of the court. You certainly do not do it by means of seeking a removal under order 40. Or it may be, as I suspect is the case, that the time has long gone for raising Constitutional issues. The matter has been disposed of by the judgment of the Court of Appeal in the matter of 218 of 1992.

MR STUBBERFIELD: With respect, your Honour, there is two cases that I have referred you to in here - two clear cases - a very high authority - that say that the law is supreme and notwithstanding that - just let me find these two cases, too, and refer these two cases to you. Yes. If you look at page 4 at paragraph 10B there - - -

HIS HONOUR: Yes.

MR STUBBERFIELD: - - - that relates to the law as regards statutes.

HIS HONOUR: Yes.

MR STUBBERFIELD: And I have said at B:

The statute being a planning Act enacted for the benefit, health, and welfare of the community at large, the judgment can create no estoppel -

and that is, neither by - estoppel by (sic) pais or res judicata. And you will find that in - - -

HIS HONOUR: But it does. But it does. Barilla ats James does not help you there. What the judgment between you and the Council or whoever was the respondent - - -

MR STUBBERFIELD: No.

HIS HONOUR: Who were - - -

MR STUBBERFIELD: That is - it was between me and my neighbour, Mr Newing.

HIS HONOUR: Right. You and Mr Newing, was it?

MR STUBBERFIELD: That is correct.

HIS HONOUR: And that judgment - there has been a judgment given in those proceedings. That judgment binds the pair of you forever, until it is set aside.

MR STUBBERFIELD: Not according to Cock Hung v Leong Chong Mines, your Honour.

HIS HONOUR: Well, I think if you read those - I am not familiar with Cock Hung. I am familiar with Barilla v James.

MR STUBBERFIELD: Well, you have got the cases there, with respect. The extracts of the cases are there, and they show quite clearly that a party cannot be constricted by an estoppel where there is a statute, and a party can always subsequently rely on the statute, no matter what, and that is - that is exactly what I am doing.

HIS HONOUR: But that is a different - that was because you had a - under - in Cock Hung it is because the statute gave you rights. The statute gave you rights. And the fact that somebody had got a default judgment could not stand in the way. But you have had a judgment on the interpretation of the statute. That is a very different case. It has got nothing to - - -

MR STUBBERFIELD: There is no - it was not an interpretation of the statute at all, your Honour. That judgment was not. The statute - the statute does not need interpretation. There is no - - -

HIS HONOUR: Anyway, Mr Stubberfield, we are getting a long way off the track here, and that is that there is no 118 point involved here. Now, I will give you another five minutes, but there is really - - -

MR STUBBERFIELD: Well, if there is not - if there is not a 118 point involved, then there is certainly a point of rights stemming from the basis of the Constitution as the cases that I have put to you clearly show.

HIS HONOUR: Well, then you will have to seek some other remedy.

MR STUBBERFIELD: Look at - - -

HIS HONOUR: But it cannot be a 118 remedy, and - - -

MR STUBBERFIELD: - - - Leith. Well, Leith - 118 is only the court's - the Constitution expression of it, and - - -

HIS HONOUR: But, no, it is - you just cannot - - -

MR STUBBERFIELD: - - - there is Leith v R - - -

HIS HONOUR: But you are seeking to remove a matter into this Court which is pending in a Supreme Court, and it no longer is pending in the Supreme Court because - - -

MR STUBBERFIELD: No. Well, that is because the Supreme Court has deliberately frustrated - - -

HIS HONOUR: Well - - -

MR STUBBERFIELD: - - - knowing what it has done in the past it is now desperately trying to cover up. And what I am saying to that, your Honour - - -

HIS HONOUR: Now, Mr Stubberfield, you should not make statements like that. The Judges of the Court of Appeal do not go around - - -

MR STUBBERFIELD: Well, those - those statements are proven, your Honour, by their own actions - - -

HIS HONOUR: They are not proven at all.

MR STUBBERFIELD: Well - - -

HIS HONOUR: I will not allow this Court to be used as a venue to denigrate the Judges of the Court of Appeal.

MR STUBBERFIELD: No - well - well - - -

HIS HONOUR: They may be right or wrong in their decisions, but they are doing their job to the best of their ability.

MR STUBBERFIELD: With respect, your Honour, in the reasons they gave there are four errors of fact where - for instance, they said in the reasons there was no town planning certificate before them, when in fact there were two - - -

HIS HONOUR: Well, if there is - you can raise those matters in a special leave application, if you want to challenge the decision they gave last Friday, but all I am concerned with here is an application to remove. I cannot remove anything. Even if I was in - - -

MR STUBBERFIELD: No, because - - -

HIS HONOUR: - - - if I was 100 per cent in favour of your merits arguments I could not issue an order, I have got nothing to remove. There is nothing - - -

MR STUBBERFIELD: No, because of the Court of Appeal's bringing down their decision.

HIS HONOUR: Yes.

MR STUBBERFIELD: That is correct, your Honour.

HIS HONOUR: Well - so - - -

MR STUBBERFIELD: I accept that, and - and - but - - -

HIS HONOUR: Yes. Well, once you accept that, that is the end of this.

MR STUBBERFIELD: - - - but the Court has an inherent jurisdiction, your Honour - - -

HIS HONOUR: Well, that is a - - -

MR STUBBERFIELD: - - - to protect its procedure.

HIS HONOUR: Well - - -

MR STUBBERFIELD: And what I am saying is that the Court should protect its procedure by allowing amendment under - I think it is order 29 of the documentation - to bring it on as an original matter before the - - -

HIS HONOUR: I cannot - that would be to change the whole nature of the matter. If you want to challenge this in some other way, either by - - -

MR STUBBERFIELD: Well, it has been brought about, your Honour, by the actions of the Court of Appeal.

HIS HONOUR: Well - well - - -

MR STUBBERFIELD: Quite obviously it has.

HIS HONOUR: - - - that is the fact. But, Mr Stubberfield, we are just wasting your time and my time pursuing this if you have got - you may or may not have other remedies in respect of what the Court of Appeal did in its judgment last Friday, but section 118 and removal is not one of them. I think you - - -

MR STUBBERFIELD: You keep saying section 188, your Honour. What I am pointing out - what I have pointed out here quite clearly is that, together with the underlying doctrines and principles on which it is structured as adopted by this Court - and that was - this Court adopted it in the engineers case in - when was that - 1926 - - -

HIS HONOUR: Back in 19 - no, 1920.

MR STUBBERFIELD: - - - and before.

HIS HONOUR: No, 1920 - 1920.

MR STUBBERFIELD: 1920 - and - - -

HIS HONOUR: [1920] HCA 54; 28 CLR 129 - every Judge of this Court knows it backwards.

MR STUBBERFIELD: Knows it, that is right. And, with respect, your Honour, every Judge in this Court should know that the basis of that determination by that Court is statutory - the rules of statutory interpretation were taken from the English Privy Council, and what the English Privy Council said - I would just like to read that to you, but it says - it says that if the text of the Constitution document is explicit then it is conclusive. And if I can just find that section - - -

HIS HONOUR: Well, that is - it sounds like the Boilermakers to me; is it?

MR STUBBERFIELD: Possibly it was, your Honour.

HIS HONOUR: Sounds like Viscount Simmonds in the Boilermakers, Kirby - the Queen v Kirby (1955) - - -

MR STUBBERFIELD: Amalgamated Association of Engineers - no - - -

HIS HONOUR: Yes, that is - - -

MR STUBBERFIELD: - - - v Adelaide Steamship.

HIS HONOUR: Oh, I see.

MR STUBBERFIELD: And it is at page 150 - you need 150 - 149 - - -

HIS HONOUR: Yes. That is from Isaac Js judgment. Yes.

MR STUBBERFIELD: And they quoted the Attorney-General for Ontario v Attorney-General for Canada, and - well, it says, there somewhere - the extract - I have marked it in my papers here - - -

HIS HONOUR: Well, Mr Stubberfield - - -

MR STUBBERFIELD: - - - that if the text - - -

HIS HONOUR: - - - I understand the principle upon which you rely, but the point is there is nothing we can do here today. That is the beginning and end of it. There is nothing to remove. I have got a summons for removal. If you want to take out a special leave application, that is a different process altogether. It comes before different Judges. If you want - - -

MR STUBBERFIELD: Yes. This is - this is - - -

HIS HONOUR: If you want to take out a - - -

MR STUBBERFIELD: With respect, your Honour, I have got no faith in getting a proper determination on those. Look - - -

HIS HONOUR: Mr Stubberfield, if you have got a good point you will get special leave.

MR STUBBERFIELD: No. You have just refused one specifically, your Honour.

HIS HONOUR: Well, I know we have - - -

MR STUBBERFIELD: That is right, and - - -

HIS HONOUR: - - - I know we have, because there was no - with great respect, it was not - there was not a special leave point in it.

MR STUBBERFIELD: With respect - with respect, your Honour, there is a case of this Court that I relied on which said - which says quite clearly the fact that there is a ground for appeal - a ground for appeal, not a requirement of application for leave to appeal - the Court found that if there is a - no matter that there is a ground for appeal, it does not affect the point of judicial review. Judicial review is on the legality of the hearing, and that is what I asked for. And you have completely disregarded that case, and that was a case from the Full Court of this Court, and if I cannot rely on a judgment of the Full Court of this Court and not get it responded to - I mean, you have - - -

HIS HONOUR: Well, Mr Stubberfield, I have - I think your time is up. I will have to give judgment.

MR STUBBERFIELD: Yes, yes.

HIS HONOUR: Thank you, Mr Stubberfield. Thank you very much for your - - -

MR STUBBERFIELD: We have been torpedoed by the Court of Appeal. It is a cover-up.

HIS HONOUR: Yes. I do not have to hear from you, Mr Healy, thank you.

In this summons, Mr Stubberfield seeks the removal, under section 40 of the Judiciary Act, of Appeal No. 140 of 1995, which was pending in the Court of Appeal of Queensland when the summons was issued. The Court of Appeal heard the matter and reserved judgment on 25 March 1996. However, Mr Stubberfield has informed me that the Court has now given judgment in the matter. Accordingly, there is nothing to remove under section 40, and Mr Stubberfield's remedy in respect of that judgment, if he has one, is to seek special leave to appeal to this Court. But in any event, even if the Court of Appeal had not given judgment, I would not have made an order for removal.

Mr Stubberfield contended that there was a constitutional issue involved in the case because the Judges of the Court of Appeal had refused to apply a Queensland statute or had otherwise acted contrary to a Queensland statute. However, that does not mean section 118 of the Constitution is involved in the proceedings in the Queensland courts. One view of section 118 is that it is a procedural section requiring courts to give recognition to public documents, provided those documents are properly authenticated. Section 118 may, however, have a substantive effect and require the courts in one State to give effect to the judgments and laws made in another State.

Early in the history of the Commonwealth, Quick and Garran said that section 118 contained a constitutional declaration in favour of interstate official and judicial reciprocity which the Commonwealth Parliament and the State Parliaments could effectuate, but could not prejudice. Whatever be the correct view of section 118 - and there may be other views in addition to the two I have mentioned - section 118 is not breached because a judge in Queensland erroneously interprets a Queensland statute. There was no section 118 point involved in this case.

In any event, even if the case did involve section 118 in some way, in the exercise of my discretion I would not have ordered the removal of the matter. It would only be in the most exceptional case, if at all, that the Court would remove a matter in a State Court that had been heard and stood reserved for judgment. In addition, it seems to me that Mr Stubberfield is seeking to re-litigate points that have been already judicially determined and which were the subject of a special leave application that was refused in this Court on 10 May 1994. In the circumstances, the application for removal is dismissed. Thank you.

MR HEALY: Question of costs, your Honour.

HIS HONOUR: Were you served with this process?

MR HEALY: Yes, your Honour.

HIS HONOUR: What do you say about costs, Mr Stubberfield?

MR STUBBERFIELD: I say no costs should be awarded, your Honour. Quite clearly, you have not heard my case. In spite of what you say, you have not heard my case. You have made your decision fundamentally on the point that the Court of Appeal have now handed down a decision. I submit to you that on the case that you have got before me - and I will refer you to that case - that there is a Constitutional point properly raised. There is a proper argument - - -

HIS HONOUR: Well, I have held that there is not, so you have to argue this question of costs on the basis that your view of it has been rejected. So - - -

MR STUBBERFIELD: Yes, but my - virtually my case has been rejected because - on the basis that the Queensland Court of Appeal have torpedoed it by bringing down a decision. It has been obviously done deliberately to - for that purpose.

HIS HONOUR: Well, I do not accept that for a moment, and you have not got a scintilla of evidence, Mr Stubberfield, to make that statement, and I think if you really think about it, you would regret saying that. I mean, you have really got no evidence to support that statement, Mr Stubberfield.

MR STUBBERFIELD: Oh, your Honour, to knowingly - that I was appearing in this Court today to argue this matter, and it has been sitting there for over three months now, and they - - -

HIS HONOUR: Not quite, I do not think; not quite three months.

MR STUBBERFIELD: Well, yes.

HIS HONOUR: Close enough.

MR STUBBERFIELD: 25 March.

HIS HONOUR: Yes; close enough.

MR STUBBERFIELD: And knowing that I was appearing before this Court, and knowing that it would take away the jurisdiction of this Court - which I might add I asked when the matter was brought down on Friday that they adjourn it or stay it - - -

HIS HONOUR: But we would not have - - -

MR STUBBERFIELD: - - - until after this - - -

HIS HONOUR: I would not, even if they had not brought down judgment - I have made it quite plain: I would not have removed the matter.

MR STUBBERFIELD: Well, let me - - -

HIS HONOUR: It is a discretionary matter, so I have said I would not have removed it.

MR STUBBERFIELD: With respect, your Honour, I do not believe it is a discretionary matter, not going on a 1986 case that I have cited to you, where the Court said that if there is a bona fide Constitutional matter, the Court has no discretion but to set it down for trial.

HIS HONOUR: Well, that is just simply - - -

MR STUBBERFIELD: Set it down for hearing.

HIS HONOUR: - - - erroneous, and in fact as recently as a few weeks ago - or not a few weeks ago - we refused special leave - sorry. We refused to remove the Aboriginal case, North Gamalanja.

MR STUBBERFIELD: Well, perhaps this is our problem, your Honour. Just let me read this section to you, because it is important. What you are doing here is not only taking away my rights - - -

HIS HONOUR: No, we are not taking - - -

MR STUBBERFIELD: - - - to protect my own property, you are actually - - -

HIS HONOUR: I am not taking away any rights at all.

MR STUBBERFIELD: You are actually ordering me to feed these people that have acted illegally - I have already been convicted in the process - for obtaining the illegal benefit. And I will just quote now (1986) 160 CLR, and the case starts - it is Attorney-General for the State of New South Wales v Commonwealth Savings Bank - - -

HIS HONOUR: Yes, but Attorneys-General are in a different position. They have an appeal as of right. They have a removal almost as of right. The section says:

Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a Federal Court, other than the High Court, or in a Court of a State or a Territory, may at any stage of the proceedings before final judgment be removed into the High Court under an order of the High Court which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General of the Commonwealth, the Attorney-General of a State, the Attorney-General of the Australian Capital Territory and the Attorney-General of the Northern Territory.

MR STUBBERFIELD: Yes, that is - - -

HIS HONOUR: So if the Attorneys-General come along and say there is a Constitutional question involved, and there is a Constitutional question involved, then that is the end of the matter. But there can be a Constitutional question involved in a matter in which a private citizen seeks to remove a matter, but the Court has a discretion. That case has got nothing whatever to do with this.

MR STUBBERFIELD: I see. Well, yes, all right.

HIS HONOUR: Anyway, thank you, Mr Stubberfield. What costs do you say are involved in this, Mr Healy?

MR HEALY: Just perusal of the documentation - that is about the only cost, your Honour.

HIS HONOUR: Yes. Well, Mr Stubberfield, the other side have asked for costs, and costs follow the event, and I think they are entitled to their costs, I am sorry.

MR STUBBERFIELD: Even though the facts show without a shadow of a doubt that they have knowingly acted illegally and knowingly acted criminally - - -

HIS HONOUR: Well, Mr Stubberfield, those matters have been decided - - -

MR STUBBERFIELD: - - - and have conspired to subvert - - -

HIS HONOUR: It has been decided against you, I am sorry, Mr Stubberfield.

MR STUBBERFIELD: Well, not the criminal aspect. I mean, your Honour, it has not been decided against me, and - - -

HIS HONOUR: Well, the point that you are seeking to raise here. The application for removal is dismissed with costs. Adjourn the Court.

AT 12.41 PM THE MATTER WAS ADJOURNED