Savvas v Commissioner for Land and Planning, & Ors C5/2002 [2002] HCATrans 294 (17 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Registry No C5 of 2002

B e t w e e n -

KEITH SAVVAS

Applicant

and

THE COMMISSIONER FOR LAND AND PLANNING

First Respondent

NATIONAL TRUST OF AUSTRALIA (ACT)

Second Respondent

B & L THEARLE

Third Respondents

ANNE FORREST

Fourth Respondent

D.L. THEARLE

Fifth Respondent

M. McINTOSH

Sixth Respondent

B. & A. HOWARTH

Seventh Respondents

OLD RED HILL PRESERVATION GROUP INC

Eighth Respondent

E. LAURIE

Ninth Respondent

DR & MRS G.J. HARVEY

Tenth Respondents

P. & G. BIRD

Eleventh Respondents

D.A. WILES

Twelfth Respondent

E. & R. DIGWEED

Thirteenth Respondent

Application for removal

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 17 JUNE 2002, AT 1.31 PM

Copyright in the High Court of Australia

MR K. SAVVAS appeared in person.

MR C.M. ERSKINE: I appear for the first respondent. (instructed by the ACT Government Solicitor)

HIS HONOUR: Yes.

MR ERSKINE: In addition to that, a section 78B notice has been filed in the matter.

HIS HONOUR: Yes.

MR ERSKINE: In respect of the issues arising under that notice, I am instructed to appear on behalf of the ACT Attorney who, for that notice only, also intervenes.

HIS HONOUR: All right, thank you. I understand both parties are prepared to have the matter dealt with on the papers and I am ready to give judgment in the matter.

MR ERSKINE: Yes, your Honour.

HIS HONOUR: The applicant seeks the removal under section 40 of the Judiciary Act 1903 (Cth) of an appeal pending in the Supreme Court of the Australian Capital Territory. The appeal is against a decision of the Administrative Appeals Tribunal of the Australian Capital Territory in a planning appeal.

Section 46 of the Administrative Appeals Tribunal Act 1989 (ACT) gives a right of appeal to the Supreme Court against a decision of the Tribunal on a question of law. The grounds for removal are stated to be:

"The right of independent judicial review and as inferred from the material attached hereto and marked exhibits 3, 3A, 4, 5, 6 and 7."

Content is given to these grounds by the applicant's summary of argument which alleges that independent judicial review does not exist in the Australian Capital Territory. The summary of argument claims that this allegation can be substantiated and that "it is also apparent from the structure of its government."

The first respondent points out that the only evidence, if it can be called evidence, to support that allegation consists of two newspaper articles relating to matters unconnected with the present case or issues.

In his reply the applicant says he is not alleging "the ACT Government is coercing and intimidating the ACT Judiciary." However, he then makes the Kafkaesque statement:

"I allege that the ACT Judiciary is being coerced and intimidated into providing rulings that please, politically, the ACT Government that holds office. I do not allege by who. I do not know who is. Who is fluid and arises from the structure of the ACT Government. The ACT Judiciary will know who is intimidating them. It is no longer necessary for them to give evidence to determine this matter."

There is not a shred of material in the exhibits or the brief affidavit of the applicant that supports these highly defamatory allegations against the judiciary of the Australian Capital Territory. There is no evidence whatever that any member of the Australian Capital Territory judiciary has been or is being coerced into making decisions to please the government of the Australian Capital Territory. A more serious allegation against the judiciary of the Australian Capital Territory could hardly be imagined. It is calculated to undermine public confidence in the judiciary of the Territory.

Not only is there no evidence that the Australian Capital Territory judiciary is not coerced by or seeks to please the government of the Australian Capital Territory, there are public statements that tend to show that the position is to the contrary. Master Connolly of the Australian Capital Territory Supreme Court, a former Attorney-General of the Territory, and Chief Justice Miles, have pointed out in published papers delivered in 1997 and 1992, respectively, that the Executive Government of the Australian Capital Territory has, in fact, been critical of the independence of the Supreme Court in planning matters: see Terry Connolly, Relations Between the Judicial and Executive Branches of Government 1997, Journal of Judicial Administration 215 at 217, Jeffrey Miles, Justice At The Seat of Government (1992) 60 ALJ 555 at 560.

The Supreme Court of the Australian Capital Territory is a superior court of record under section 3 of the Supreme Court Act 1933 (ACT). The judges hold office until age 70 and can only be removed from office in accordance with sections 48C and 48D of the Australian Capital Territory (Self-Government) Act 1988 (Cth).

The judges of that court have the same judicial independence as the judges of any Supreme Court in the States. Indeed, they have greater protection from the government of the Australian Capital Territory than the judges of the State courts have from their governments. In introducing Part VA of the Self-Government Bill which contained the now sections 48A, 48C and 48D, the federal Attorney-General pointed out that, because the provisions are in Commonwealth legislation, the Australian Capital Territory judiciary is not subject to the possibility of an attack on its independence by the Australian Capital Territory Executive or the Australian Capital Territory legislature. See Hansard, 6 May 1992 at 2509. In concluding the second reading debate on the Bill, the Attorney-General pointed out that in fact the Australian Capital Territory Supreme Court is "provided with a level of protection which is not available to other State courts, or, for that matter, the Northern Territory Supreme Court, because the Australian Capital Territory Supreme Court is the subject in this sense of Commonwealth legislation". See Hansard, 28 May 1992 at page 3125. It is preposterous to suggest that the Supreme Court Justices of the Australian Capital Territory are not independent of the Executive Government of the Australian Capital Territory.

The Administrative Appeals Act gives a right of appeal to the Supreme Court on a question of law but not on the merits. If the Tribunal has erred in law in this case, the Supreme Court can set the decision aside. If the applicant is dissatisfied with the decision of the Supreme Court, he has a right of appeal to the Full Court of the Federal Court of Australia. The members of the Federal Court are appointed under and have the protection of Chapter III of the Constitution. If the applicant is dissatisfied with the decision of the Full Court of the Federal Court, he can seek special leave to appeal to this Court. This Court will then have the advantage of judgments of the Justices of the Australian Capital Territory Supreme Court and the Full Federal Court before considering the matter. There are no grounds whatever for making an order of removal under section 40.

It is a matter of surprise and concern that any professional person such as the applicant, who is an architect, would make such irresponsible allegations as have been made in this case. It is perhaps even more surprising that such an allegation would be made by a litigant before his case had been even determined by the Supreme Court. I hope that I will never again hear such serious allegations made without persuasive supporting material.

The application must be dismissed.

The applicant says that he should not have to pay costs because it would cause economic hardship to himself and his family. That is not a ground for refusing to make an order for costs. There are thirteen respondents to this application. They have filed appearances to defend this application and it is, in my view, an application without substance. In so far as the respondents have incurred costs by the applicant's action in filing the order for removal, they are entitled to an order for costs against the applicant.

Alternatively, the applicant claims that he is exempted from lodgment fees and, therefore, orders for costs. The fact that an applicant is exempted from lodgment fees is not a ground either as a matter of law or justice for refusing to make an order that he pay the costs of the proceedings. On the contrary, it provides a sound reason why he should pay the costs.

Not so long ago, nearly all persons commencing proceedings in this Court had to pay filing fees in this Court, but a Court or a Justice had power to waive the fees and ordinarily did so where the applicant was impecunious and had a case that was at least arguable, even if it was only barely arguable. In pursuit of access to justice, a previous government altered that rule. For some years now, litigants who fall into certain categories are exempt from paying filing fees. This enables them to commence proceedings in this Court not only without paying filing fees, but also without regard to whether their cases are even arguable.

Under Order 58(4) of the Rules of Court, the Court or a Justice can direct the Registrar not to file or issue certain classes of application without the order of a Justice but this power, although providing some protection for respondents, can usually be exercised only when the form of the application indicates that it is frivolous or vexatious. It provides no protection in respect of cases that are drawn in proper form but, nevertheless, raise no issue fit for determination by this Court.

A large number of cases now filed in the original jurisdiction of the Court and in special leave applications have no reasonable prospect of success. Often they have no substance whatever. They should never have been commenced in this Court. There seems a reasonable probability that there is a causal connection between the non-payment of fees and at least some of these unmeritorious cases. Not only do the litigants not have to pay filing fees, but they and their advisers, when they have them, know that costs orders against them are often worthless.

If all litigants in civil cases had to pay filing fees, unless they were impecunious and had an arguable case, there would be at least a strong economic disincentive to bring cases that should not be brought in the Court. It ought never to be forgotten that, when applications are filed in this Court, the respondent or respondents to the proceedings are faced with the dilemma of ignoring the proceedings, defending them without legal representation or incurring legal expenses that they may not be able to recover from the applicant. Often enough the respondents are ordinary citizens of limited means.

The filing of applications without substance also takes up the time of Justices of the Court. This must have an impact on the business of the Court which is increasing almost exponentially. Special leave filings in the Court have increased 787 per cent since 1984 with the same number of Justices to deal with them. Few would doubt that cases in all courts are generally more complex now than they were even 20 years ago. As a result, this Court, like the United States Supreme Court, is now able to hear fewer appeals and substantive matters than it once did.

Other litigants with meritorious cases are thus affected by the filing of unmeritorious applications in this Court. At the very least, the filing of unmeritorious applications must mean that meritorious cases are disposed of less quickly than would be the case if Justices did not have to deal with these unmeritorious applications.

A great majority of cases filed in this Court have already been the subject of judicial or quasi-judicial determination, often at two or three levels of adjudication. To talk of such persons being denied access to justice is fanciful. Changing the old rule concerning the paying of filing fees might have seemed a good idea at the time. Experience has shown, however, that it hinders rather than promotes the due administration of justice. In my view, the matter requires further consideration by the Parliament of the Commonwealth.

The fact that the applicant did not have to pay filing fees is not a reason for refusing to make a costs order against him. I dismiss the application, with costs.

MR ERSKINE: May it please the Court.

AT 1.48 PM THE MATTER WAS CONCLUDED