Buchanan, Ex parte- Re CJ High Court, Hon Sir A Mason

[1995] HCATrans 6

IN THE HIGH COURT OF AUSTRALIA

Registry       No C100 of 1995

In the matter of -

A writ of mandamus against CHIEF JUSTICE OF THE HIGH COURT, THE HONOURABLE SIR ANTHONY MASON AO, KBE, and PATRON OF THE AUSTRALIAN NATIONAL UNIVERSITY DEBATING SOCIETY

Respondent

Ex parte -

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

Registry      No C101 of 1995

B e t w e e n -

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN  and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Plaintiff

and

THE HONOURABLE SIR ANTHONY FRANK MASON AO KBE, CHIEF JUSTICE OF THE HIGH COURT OF AUSTRALIA

Defendant

Application for writ for leave
  to issue writ of summons

Registry       No C102 of 1995

In the matter of -

A writ of mandamus against HONOURABLE DUNCAN JAMES COLQUHOUN KERR, MINISTER FOR JUSTICE, COMMONWEALTH OF AUSTRALIA

Respondent

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

Registry       No C103 of 1995

In the matter of -

A writ of mandamus against HONOURABLE MICHAEL HUGH LAVARCH, ATTORNEY-GENERAL, COMMONWEALTH OF AUSTRALIA

Respondent

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

Registry       No C104 of 1995

In the matter of -

A writ of mandamus against HONOURABLE SIMON FINDLAY CREAN, MINISTER FOR EDUCATION, COMMONWEALTH OF AUSTRALIA

Respondent

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

Registry       No C105 of 1995

In the matter of -

A writ of mandamus against HONOURABLE DR CARMEN MARY LAWRENCE, MINISTER FOR HEALTH,COMMONWEALTH OF AUSTRALIA

Respondent

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

Registry       No C106 of 1995

In the matter of -

A writ of mandamus against HONOURABLE MICHAEL JOHN LEE, MINISTER FOR COMMUNICATION, COMMONWEALTH OF AUSTRALIA

Respondent

ALEXANDER MARCEL ANDREI SEBASTIAN BAYLISS aka BUCHANAN and AUSTRALIAN NATIONAL UNIVERSITY SCRABBLE SOCIETY

Prosecutors

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 FEBRUARY 1995, AT 2.16 PM

Copyright in the High Court of Australia

______________________

HIS HONOUR:   Yes, Mr Buchanan.

MR A.M.A.S. BUCHANAN:   Good afternoon, your Honour.  I have filed a number of applications:  firstly, a writ of negligence against the Chief Justice of the High Court, a writ of mandamus and a writ of mandamus against the federal Attorney‑General.  It has come to my attention that those applications I filed, I had not done the proofreading.  I have other copies that have been proofread to substitute if possible, your Honour.

HIS HONOUR:   In which matters, Mr Buchanan?  There are seven matters in all, as I understand it.

MR BUCHANAN:   It is just with due respect to the first three applications, your Honour.  I notice quite a number of errors.

HIS HONOUR:   Just let me have a look at the papers and they can find their way on to the file.  Correct me if I am wrong:  one relates to the proposed writ against the Chief Justice, one is in relation to an order nisi for mandamus against the Chief Justice, the other is for an order nisi for mandamus against the Attorney‑General.  Is that right?

MR BUCHANAN:   That is correct, your Honour.

TOOHEY J:   And are they just proofreading changes?

MR BUCHANAN:   That is correct, your Honour, just a few spelling mistakes and grammar.

TOOHEY J:   Yes, go ahead, Mr Buchanan.

MR BUCHANAN:   Your Honour, on 3 January - I do not know if it is necessary to give the approximate time I arrived, but I arrived in the High Court Registry to file an application of negligence against the Chief Justice and an application of mandamus against the Honourable Chief Justice.  Upon my having arrived I was greeted by the Deputy Registrar, your Honour, who I will just refer to as “the Deputy Registrar”, and upon that encounter and presentation of the applications I was lodging, the Deputy Registrar pointed out they were unusual applications.  I noted in my diary as this was said, “As they are unusual applications I shall have to take them before a Justice first”.

Now, having had this brought to my attention I went home.  I firstly sat down and read the High Court Rules thoroughly to check I had not misinterpreted them and upon having read those I prepared a certiorari against that decision which was made the following day by Justice Michael Hudson McHugh and a decision was made, as you might have records of that, that basically before it can be heard - I will just look at the original, your Honour.  With regard to the writ of negligence, your honourable Justice wrote:

Upon the Registrar seeking my direction, present to the terms of Order 58 Rule 43, I direct the Registrar to refuse to issue this writ without the leave of a Justice first had and obtained.

And on the writ of mandamus, a very similar thing was said.

HIS HONOUR:   Well, that is the reason why you are here this afternoon, is it not, because in five of these matters there has been a direction by a Justice of the Court that process not be issued without the leave of the Justice; and you understand the reason for that, do you?

MR BUCHANAN:   Very much so, your Honour, and I question that in my writ of certiorari ‑ as the High Court rules does not actually provide a provision which says, “If an application is unusual thou shalt take it before a Justice”.

HIS HONOUR:   No, but what it does say, Mr Buchanan, is where the Registrar is of the opinion that the proposed process is “frivolous or vexatious”, or “an abuse of process” of the Court, he may refer it to a Justice of the Court and a Justice may either direct the Registrar to accept the process or direct that process be not issued without the leave of a Justice.  And, in that event, it is open to the person to do what you are doing at the moment; that is, to come before a Justice of the Court and ask for leave to issue that process.  But, in order to get that leave, it is necessary for you to satisfy the Court that the process you wish to issue is not frivolous or vexatious or an abuse of process.

MR BUCHANAN:   I certain respect, appreciate and realise that, your Honour, and it was with the question, perhaps to save us having to hear this application, I thought that if we could ‑ my certiorari, which I have completed and have a copy of here, if you are interested ‑ I have argued ‑ presented some legal argument along those lines, which may make it necessary, if that certiorari is successful, to not have to go before a Justice and seek leave, and perhaps to allow the Registrar just to sign and seal it and effectively save this process ‑ on the first two applications, that is.

HIS HONOUR:   That is simply bypassing the Rules of the Court, is it not?

MR BUCHANAN:   Your Honour, where I might point out where I was confused - I was somewhat unclear because the Deputy Registrar made it very clear that because this is an unusual application - now, the speech in that context had no reference to vexatious, frivolous or abuse of process and perhaps has caused some undue concern on my behalf.

HIS HONOUR:   I am not sure what you mean.

MR BUCHANAN:   The Deputy Registrar said to me, “Look, because this is an unusual application it shall have to go before a Justice.”  At no stage did the Deputy Registrar say to me, “Look, this is an abuse of the process - vexatious or frivolous.  Therefore it shall have to go before a Justice”.

HIS HONOUR:   The fact is, that in each case, at least in five of the seven cases, the proposed process has gone before a Justice of the court and in each of those cases there has been a direction that that process not issue without leave.  So, it is incumbent on you, if you wish to obtain leave in those cases, to persuade me that the proposed proceedings are not frivolous or vexatious or an abuse of process.  In two of the cases there has been no such direction.  That is simply because they have come in fairly late in the day and I have said I will deal with them first up, as it were, this afternoon.  They are two of the cases in which you are seeking relief by way of mandamus.  All these seven cases, I think roughly speaking, raise the same sort of question, do they not?  Roughly speaking.

MR BUCHANAN:   Roughly speaking, they are similar questions, however, the questions raised in all of them would only be applicable under the portfolio of one of the persons who I have applied for.  So, the seven different areas which I have raised - well, obviously - well, each were remitted to the relevant person.

HIS HONOUR:   When you say “seven different areas”, there are various persons named and they are, for the most part, Ministers of the Crown, but the facts which are said to give rise to the process appear to be much the same in each case.

MR BUCHANAN:   That is correct, your Honour.

HIS HONOUR:   I say that because there is no need to go through the whole seven of them. 

MR BUCHANAN:   Sure.  I was just referring to ‑ abuse of the courts comes under the Attorney‑General, police corruption, the Minister for Justice, university corruption and abuse of the Higher Education Acts would be the Minister for Education.  The disability discrimination would come under the Minister for Health and abuse of the telecommunications even by the federal police before false accusations are made would come under the Minister for Communications.  That is what I mean by “different areas”:  different portfolios respectively.  Your Honour, would you like me to start on the first one, providing reasoning?

HIS HONOUR:   As I say, I do not want you to take me through each matter in each file if, in fact, they raise similar questions and in each case the main point of difference is simply that a different Minister of the Crown has been named; in some cases it is the Attorney‑General, in another case it is the Minister for Health, and in another case it is the Minister for Communications.  But what I think you have got to understand, Mr Buchanan, is some fairly fundamental questions.  There are seven matters which are before me.  One of them is in form a writ which you wish to issue against the Chief Justice which on my reading of it seems to in some way ‑ which I have to say I find very difficult to understand ‑ seeks to identify some cause of action against the Chief Justice by reason of the fact that he was patron of the ANU Debating Society. 

In the other cases, the other six cases, are all applications for relief by way of mandamus against - in all cases except one - a Minister of the Crown and then the other case against the Chief Justice.  They also relate, at least in large part, to the affairs of the Debating Society and in some way they seek an order nisi to compel the particular Minister named not to do any particular thing which would ordinarily be associated with mandamus but that they themselves take proceedings by way of mandamus against other Ministers to compel the issue of warrants against a whole variety of people, none of whom appear to have been served with process.

MR BUCHANAN:   Certainly.

HIS HONOUR:   And none of whom, of course, are here today.

MR BUCHANAN:   Your Honour, on the point you have just raised, can I clearly point when I am requesting performance, I am not only requesting that the office of the Commonwealth - firstly, if I can just refer to the specific question.  I am, firstly, requesting the office of the Commonwealth to use their powers - such as the federal Attorney‑General to use his powers after he was appointed by the Governor‑General as provided by convention and under the Australian Constitution Act.

I also request that each of the officers of the Commonwealth I am requesting performance of make oral orders and issue warrants so 21 people, seven ANU Debating Society students, seven barristers and solicitors for and at the ANU, one of them being the ANU Pro Vice Chancellor for Planning and Administration, Phillip Allan Selth, and seven federal police officers, one of them being a fellow student, friend and lover of the vice president of the Debating Society, arrest them for criminal activity ranging from two, five, seven, ten to fourteen years; criminal activity which I am quite happy to prove, your Honour, and ‑ ‑ ‑

HIS HONOUR:   It is not a question of whether you are happy to prove it or not.  You must understand, Mr Buchanan, you just cannot, as it were, come along to a court and seek to file a piece of paper which has the effect of calling upon a Minister of the Crown or the Chief Justice or anyone else to take action by way of the issue of a warrant against people.  In order to get off the ground you have to persuade the Court that there is some substance in these matters.  Now, that is your task, to persuade me that there is sufficient substance, not just factually, but that the matters that you raise are appropriate matters to give rise to the issue in one case of a writ and in the other case of orders nisi for mandamus.  So how do you propose to do that?

MR BUCHANAN:   Your Honour, how I propose to do that is, firstly - I do not know if you have the exhibits handy with you, your Honour?

HIS HONOUR:   That is another matter.  There is reference in some of the files to exhibits running up to, I think, in the 400s.  In none of the cases are those documents available.  In some cases there are four or five exhibits.  I am not suggesting that they should be available because it seems to me that you might be hard put to show the relevance of them.  I simply point that out to you, when you ask me whether I had the exhibits available, there are some exhibits in some files.  Are there particular exhibits that you wanted to refer to?

MR BUCHANAN:   Your Honour, because these are complex criminal activities taking place at the Australian National University, which is a relief because they are supposed to be complex minds, I have only provided 12 exhibits.  However, in the event that I should be killed before these cases finally get to hearing I have left a comprehensive exhibit list which clearly directs where the evidence is when it needs to be subpoenaed.  If you wish I can hand forward 12 exhibits, one of ‑ ‑ ‑

HIS HONOUR:   Are they exhibits that are already in the files?

MR BUCHANAN:   Yes, they are, actually.

HIS HONOUR:   Then you do not need to hand them up to me but can I try to make clear to you, Mr Buchanan, that you are asking this Court to issue process which the Court, of course, has jurisdiction to do in certain cases.  But in order to persuade the Court to do this, you have to identify some sort of cause of action in the case of the writ that you wish to issue and in the six other cases you have to identify some action or lack of action on the part of the particular Minister concerned which would justify the issue of a writ.

MR BUCHANAN:   Certainly.

HIS HONOUR:   It is not my task here to sift through all the facts that you allege in the various affidavits and other documents you file.  It is your task to persuade me that there is sufficient substance in any of these matters to justify a process being issued.

MR BUCHANAN:   Certainly.  Your Honour, if I might start then, I am discussing or presenting four exhibits or pieces of evidence in which the Chief Justice of the High Court has endorsed the extracurricular activities of the Australian National University Debating Society and ‑ I do not know if you can see from there, but there are ‑ ‑ ‑

HIS HONOUR:   I can see it but I certainly cannot read it from here.  Is it something that is in one of these files?

MR BUCHANAN:   Yes, you would have copies there.

HIS HONOUR:   Which file?

MR BUCHANAN:   I believe these exhibits are exhibited with all of the applications I have lodged, your Honour.

HIS HONOUR:   Do you mean including the proposed writ?

MR BUCHANAN:   That is correct.

HIS HONOUR:   All right, I will open that.  What document should I be looking for?

MR BUCHANAN:   If I could refer to an exhibit on High Court of Australia letterhead which says, “Patrons welcome”.  I think that is the one just after the Scrabble Society’s score sheet.

HIS HONOUR:   Yes, I have it.

MR BUCHANAN:   Would it be possible if I could just recite this, your Honour, to ‑ ‑ ‑

HIS HONOUR:   I do not know that you need to read it all.  Take me to any particular part of it that you think I should be taken to.

MR BUCHANAN:   Okay.  Your Honour, I filed a writ of negligence where I have argued that the Chief Justice of the High Court is negligent in endorsing the extracurricular activities of the Australian National University Debating Society.  If I allow you the chance to read that first letter, I could perhaps draw your attention to ‑ it says:

As patron of the ANU Debating Society, it gives me much pleasure to greet members of the society who are returning to the university to continue their studies and those students who are commencing their studies this year.  Debating is an important and influential aspect of academic life in a university.  Members of the society provide an excellent opportunity for the discussion of a wide range of social, political and philosophical issues affecting Australia.  In particular, and the world in general, as well there is an added reward to the opportunity to make lasting friendships.

That was a 1991 letter but, more importantly, your Honour, it is the 992 which is the first ‑ ‑ ‑

HIS HONOUR:   Let us just stop there for a moment, Mr Buchanan.  Do you seriously contend that there is anything in that letter which could justify the issue of process?

MR BUCHANAN:   No, I do not suggest that, your Honour.

HIS HONOUR:   Then why spend time on it?

MR BUCHANAN:   Your Honour, I just wanted to spend time on that 1991 letter to clearly indicate that over the next four years, perhaps even including this year, the Chief Justice of the High Court on High Court of Australia letterhead has endorsed ‑ is in the practice of endorsing the activities, and extracurricular activities, to be specific in the letter of the following year, of the Australian National University Debating Society.  I will be arguing, your Honour, that for any reasonable human being to read one of these letters would immediately ‑ if one has great respect for the organisations that the Chief Justice of the High Court endorses, would immediately think that this organisation would not be involved in any dubious and especially criminal activity.

HIS HONOUR:   Well, go on.

MR BUCHANAN:   Is that okay why I read the first one?

HIS HONOUR:   Well, I hear what you are saying but I have to say that it just does not seem to me to even begin to marry at all with the letter that the Chief Justice has written which is in the sort of terms I suppose you would expect any patron of the society to write, just to express pleasure, to greet members of the society and to commend the activities of the society.

MR BUCHANAN:   Your Honour, be that as it may, that would be very much expected of a patron but, your Honour, the reason for the writ of negligence that I have filed is that the Chief Justice of the High Court has a duty - sorry, if I might recite what I have written - the Chief Justice has failed to consider that as Chief Justice of the High Court of Australia, there is a duty of care that he owes to every Australian, and to breach that duty of care by associating, affiliating and endorsing an organisation involved in major crime such as the Australian National University Debating Society, would compromise his position and that of the Commonwealth of Australia and most importantly, the people of the Commonwealth of Australia.

Your Honour, in this situation  ‑ ‑ ‑

HIS HONOUR:   Well what is the proposition, Mr Buchanan, that the Society or its members or what are involved in criminal activities?

MR BUCHANAN:   No, the proposition is, your Honour, that when I went to university after deferring university for two years  ‑ ‑ ‑

HIS HONOUR:   Can you not just answer that question, a fairly straightforward one?

MR BUCHANAN:   Yes, your Honour.  The proposition is, the Chief Justice of the High Court - - ‑

HIS HONOUR:   No, that was not my question.  My question I think was, are you referring to criminal activities on the part of the Society or its members or some of its members or what?

MR BUCHANAN:   I am referring to major criminal activity of members, the executive and committee of the Australian National University Debating Society which escalated in a criminal effort to prevent me informing the Chief Justice of the High Court of the major criminal activity of the Australian National University Debating Society.

HIS HONOUR:   Well what is the proposition; that the patron of the Society has some sort of obligation to scrutinise the activities of every member of the Society of which that person is patron?

MR BUCHANAN:   No, your Honour, what my proposition is, that as Chief Justice of the High Court, the Chief Justice should firstly investigate any organisation who he endorses on High Court letterhead and encourages people to join in the activities of.  I am arguing that the Chief Justice of the High Court over a period of four years has been negligent in investigating the major criminal activities of the Debating Society which is the reason for the 12 applications I am filing over the first 12 Tuesdays of this year, your Honour.

HIS HONOUR:   All right, I understand that proposition.  It is a proposition which I have to say to you I regard as completely without substance, but I understand what you are saying.  Now if that is the basis of the proposed writ, is it also the basis upon which you are asking the Court to issue orders nisi for mandamus against various ministers of the Crown, directing them in turn to direct other ministers to issue orders or warrants - I think is the term you use - presumably for the arrest of the whole number of persons.  Is that the basis of your application in those other cases?

MR BUCHANAN:   No, that is not correct, your Honour.

HIS HONOUR:   If it is not, then would you please tell me precisely what is the basis of the application in these other cases.

MR BUCHANAN:   I could quite happily submit for your interest three minuscule documents and a micro cassette I have tendered to the Court, which perhaps elucidate more thoroughly the full extent of the major criminal activity of seven ANU Debating Society students; seven barristers and solicitors at the ANU - one of them being the ANU Pro Vice‑Chancellor for Planning and Administration; and seven federal police officers, one of them being the fellow student friend and lover of the ANU Debating Society Vice‑President.

HIS HONOUR:   Mr Buchanan, as I have tried to point out to you, I am not conducting a trial of anything.  I am here to give you the opportunity to persuade me that on the material that is before the Court, these are appropriate cases in which, in one case, to permit the issue of a writ, and the other case is to grant orders nisi.  Let me just put something to you.  If I just pick up one at random:  one in which the respondent is named as the Minister for Health and in which one of the orders that you seek is that the Minister for Communications - and there seems to be some problem with the documents here because the Minister for Health named as the respondent, the Minister for Communications is the person referred to in the document.  Putting that to one side for a moment, you are seeking an order nisi, no doubt intended to lead in the end to an order that the Minister for Communications make orders and issue warrants that a whole number of persons ‑ ‑ ‑

MR BUCHANAN:   Only 21, your Honour.

HIS HONOUR:   That is a whole number of persons - be arrested and have indictments filed against them.  On what conceivable ground can that sort of order be made by this Court at this stage.  By “at this stage”, I mean there are no, as far as I am aware from the papers, proceedings that have begun in other courts, no persons have been charged with offences, no courts have passed judgment on any of these matters; you are not here by way of appeal from - or seeking special leave to appeal from any judgment of a court below.

MR BUCHANAN:   Your Honour, if I might, firstly, direct or suggest that you might notice before I actually request a number of things, well, to put it politely, the arrest of 21 people for major criminal activity, before I suggested that or requested that I have actually outlined 26 pages of major criminal activity of 21 people and, your Honour ‑ ‑ ‑

HIS HONOUR:   The papers contain a variety of allegations, that is so, but you are not inviting me to act or perhaps you are inviting me to act on a whole range of allegations for which there is no apparent support.  It seems to me that you have simply mistaken the nature of the proceedings that you are seeking to launch.  People come to this Court asking for what is described as prerogative relief, which includes a mandamus where some public officer has failed to carry out public duty and in an appropriate case the Court can issue mandamus to require that officer to perform that duty, but that is a far cry from what you are asking in these proceedings.

You are asking that the Court grant an order nisi with a view to finally issuing orders directing various Ministers of the Crown to in turn direct other Ministers to issue warrants for the arrest, as I have said before, of a large number of people.  Now, I have to tell you that I can see no possible foundation for the issue of process on that material.

MR BUCHANAN:   Okay, certainly.  Your Honour, the first point is a writ of negligence - one does not need to seek leave of a Justice usually to file a writ of negligence in lower courts and the writ of negligence, we are not here to hear the writ of negligence, we are here to hear the reasons why it should be allowed to be filed.  What I would, firstly, like to propose is that this is an extremely unusual application in the sense that ‑ ‑ ‑

HIS HONOUR:   What do you mean, your application is unusual or what?

MR BUCHANAN:   Yes, that is correct, your Honour.

HIS HONOUR:   Why?  In what respects is it unusual?

MR BUCHANAN:   Your Honour, I hope it is not too often the Chief Justice of the High Court of Australia does get sued for negligence or, more importantly ‑ ‑ ‑

HIS HONOUR:   It does not matter whether it is the Chief Justice or who it is.  That is simply by the by.  What you are seeking to do is to issue a writ against a person who is the patron of the ANU Debating Society.  It would not matter whether it was the Chief Justice or any other person.

MR BUCHANAN:   Your Honour, the Chief Justice of the High Court is perhaps the only person in the country who does have the power to endorse any organisation, whether they are not involved in criminal activity or whether he does not know ‑ ‑ ‑

HIS HONOUR:   We have been through that before and I think you have made it clear that the basis of your proposed writ is that a person who is a patron of an organisation has some obligation to scrutinise the activities of the members of that organisation and the failure to do so would give rise to some sort of legal proceedings in the form that you seek to constitute them.  I understand that argument.

MR BUCHANAN:   With due regard to the writ of negligence, I am arguing that any person who owes a duty and who has breached that duty of care and there have been damages, is entitled to be sued for negligence, and that is why I have prepared an application which outlines the duty of care owed by no other than the Chief Justice and the breach of that duty of care and, more importantly, the consequent damages, and that is the basis for the writ of negligence, your Honour.

HIS HONOUR:   Well, I understand that, as I have said to you before.  Now, you have also told me that, in some way, which I have to say I find difficult to trace, the other proposed proceedings are related to the same factual situations, but you seek to use those situations as a vehicle for calling upon various ministers of the Crown to issue warrants for the arrest of people.

MR BUCHANAN:   Your Honour, if I might not have pointed out I will do so.  Since I joined the ANU Debating Society, because I saw that they were endorsed by the Chief Justice of the High Court ‑ since I joined them there have been 17 arrests, or there have been about a dozen death threats, which I have a tape submitted as evidence.  There have been issues of three restraining orders, 17 arrests, 21 charges, 60 days remand, 80 days in courts ‑ lower courts - and 100 court appearances and, more importantly, your Honour, the Debating Society, as is clearly outlined in my applications, have been involved in incitement, encouragement, aiding and abetting ‑ incitement encouragement of rape that ANU ‑ ‑ ‑

HIS HONOUR:   I know you say all that, Mr Buchanan, and you say it, but what I am trying to get through to you is that it is not enough to come along and make a range of allegations against a range of persons.  In order to issue proceedings, there has to be some basis in law for the issue of the proceedings, and this court, like a number of other courts, has a rule which empowers the Registrar to withhold the issue of process which appears to the Registrar, or the other appropriate office, to be frivolous or vexatious or an abuse of process ‑ in other words, simply to be without foundation, unless a Judge of the Court, in this case a Justice of this Court, directs that the process be issued.

You might just consider for a moment what the implications would be if there were not such a rule; it being that anybody could come along, file any document, however wild and extravagant and lacking in foundation it might be, and initiate process which involved other people in legal proceedings for which there was absolutely no foundation.  That is why those sort of rules are there.  You have your opportunity this afternoon, which I am giving you, to persuade me that there is something of substance in these matters that are referred to in the process you wish to issue.
MR BUCHANAN:   Certainly.

HIS HONOUR:   I think you should direct your attention very fairly and squarely to that.

MR BUCHANAN:   Fantastic, your Honour; I shall do.  Before I do that, might I point out I was once talking to a Senior Registrar of the High Court who told me about a case in 1972 ‑ ‑ ‑

HIS HONOUR:   Mr Buchanan, I really do not want to get involved in anecdotal matters unless they are directly relevant to the task in hand.

MR BUCHANAN:   Your Honour, where it was relevant to the task at hand is clearly it was not appropriate that that action be brought before the Court.  It was actually where a person was requesting mandamus of no other than the honourable Frank Jones ‑ or just Frank Jones ‑ that he provide her a constitution.  I understood that went through for quite some time to a Full Bench.

HIS HONOUR:   Mr Buchanan, can we come back to the task that I have identified for you?

MR BUCHANAN:   Certainly, your Honour.  The purpose for filing these mandamuses is firstly that I have ‑ the applicant, being myself, and the ANU Scrabble Society has requested performance of duty of the Chief Justice of the High Court, the federal Attorney‑General, the Minister for Justice, Education, Communication, Health, the Commissioner of the Australian Federal Police, the Commonwealth Ombudsman, the Privacy Commissioner, Discrimination Commissioner, Minister for Foreign Affairs, the Prime Minister, the Chancellor of the ANU, the Queen, has requested performance of their duty, as is outlined in Reg v Bristol ..... Railway Co, 1843 ‑ ‑ ‑

HIS HONOUR:   But the duties that you wish them to perform apparently are to give directions to other ministers that they issue warrants for the arrest ‑ ‑ ‑

MR BUCHANAN:   No, that was not correct, your Honour.  The duty that I requested them perform ‑ the Chief Justice of the High Court:  I requested that he cease endorsing the ANU Debating Society, because they were involved in major crime.  The federal Attorney‑General:  I requested that he investigate the abuse of the ACT courts by the ANU Debating Society and.....prevent me informing the Chief Justice of the High Court of their major criminal activity.  The Minister for Justice:  I have requested the Minister for Injustice investigate the specific criminal activity of seven federal police officers in a criminal effort to prevent me informing the Chief Justice of the High Court of their criminal activity.

The Minister for Education:  I have requested the Minister for Education investigate the major criminal activity taking place at the Australian National University in which the ANU Pro Vice‑Chancellor for Planning Administration is an accessory after the fact.  I have requested the Minister for Communication investigate abuse of the communications by the federal police that they ring me before they make false accusations and arrest me.  I have requested the Minister for Health investigate the disability of discrimination which has been conducted by the ANU Debating Society in their criminal efforts.  I requested the Commissioner of the Australian Federal Police investigate the criminal activity of 21 people.

You will notice in my application one of the first things I am requesting of all the officers of the Commonwealth is that they investigate ‑ ‑ ‑

HIS HONOUR:   I understand what you are asking, but what I keep coming back to is that you have to put forward something of substance in law that would warrant the issue of process.

MR BUCHANAN:   Your Honour, I can put forward letters in which I specifically requested performance of the officers of the Commonwealth which are in these applications.  I can also put forward evidence to prove their performance was refused or neglected as in Roth v Jones; Ex Parte Beaumont in 1978 and that where the writ is sought under section 75 of the Constitution, the authority to act was an officer of the Commonwealth and that basically what I am compelling these officers of the Commonwealth to do is to investigate, arrest, charge, remand, prosecute and sentence the herein criminals for their criminal activity and human rights abuses. You might see on page xxix, or page 29 where I have ‑ ‑ ‑

HIS HONOUR:   Of what?

MR BUCHANAN:   Page 29 of a writ of mandamus against the Chief Justice of the High Court. 

HIS HONOUR:   Are you referring to page 29 of the affidavit?

MR BUCHANAN:   That is correct, your Honour, and it is point No 6.1:

And it is ordered that to order the herein criminals to be investigated, arrested, charged, reminded and prosecuted and sentenced for the herein criminal activity.

I have already been before the Magistrates Courts, the Chief Magistrate, the Chief Justice of the Supreme Court - I have not yet been before the Chief Justice of the Federal Court - outlining what is going on.  However, I have been before every magistrate in the ACT, every justice in the ACT outlining specifically what is going on.  I have written to 838 members of Parliament nationally requesting performance of their duty, requesting that knowing that the ones whose duty it is not were merely remitted to the relevant people whose duty it is. 

I have written to 886 senior officers of higher education knowing that some of those officers of higher education were remitted to the relevant person who should be investigating major criminal activity taking place in the Australian National University.  I have written to 16 police commissioners requesting performance of their duty, requesting that they investigate these criminal activities which are outlined in a mere few four pages of documentation.

I have also written to 16 directors of public prosecutions, 16 ombudsmen, 16 governors - not 16, 8.  I have also written to 69 embassies and countless others.  Now, your Honour, I have taken enormous efforts ‑ federal police officers to investigate what is going on.  In fact, I have even had meetings with a number of prominent people, one of them being Christopher Murphy where I outlined the major  ‑ ‑ ‑

HIS HONOUR:   I am not concerned about that, Mr Buchanan.  That does not seem to me to have the slightest bearing upon what we are involved in.

MR BUCHANAN:   Can I exclude their names and just say what they  ‑ ‑ ‑

HIS HONOUR:   No, I am not concerned about their names.  I am not concerned with conversations you may have had with a range of people in which you have expressed some of your concerns, unless they are directly relevant to these matters before me.

MR BUCHANAN:   Your Honour, they are directly relevant to these matters and that is why these quotes ‑ ‑ ‑

HIS HONOUR:   Well, if you mean by directly relevant that you have aired some of these concerns to other people and they have made a particular response, I do not regard that as directly relevant to these applications.

MR BUCHANAN:   Okay.  Your Honour, might I direct you to the last exhibit of those 12 exhibits or in fact - you will also see page 26 of that same High Court application, that is the edited one - if I might point out ‑ ‑ ‑

HIS HONOUR:   You mean the one you handed up earlier this afternoon.  Is that the one you are referring to?

MR BUCHANAN:   Yes, that is correct, your Honour, and it is also exhibited ‑ ‑ ‑

HIS HONOUR:   Yes I have that.  What are you asking me to look at.

MR BUCHANAN:   Your Honour, I am merely trying to ‑ ‑ ‑

HIS HONOUR:   Is there a particular paragraph on page 26?

MR BUCHANAN:  Your Honour, have you got the big bold type?

HIS HONOUR:   Well, you handed me three sets of material when the proceedings began this afternoon which you said were corrected versions of the papers in three of the other matters ‑ ‑ ‑

MR BUCHANAN:   Does it look like this, your Honour?

HIS HONOUR:   No, it does not.  What is on the front of it?

MR BUCHANAN:   It is the same application, the re‑edited ‑ ‑ ‑

HIS HONOUR:   Well, these are the three sets of papers you handed up to me.

MR BUCHANAN:   Your Honour, might I just perhaps for your ‑ ‑ ‑

HIS HONOUR:   Well, I will hand you one back if you like and you can ‑ ‑ ‑

MR BUCHANAN:   Find it?

HIS HONOUR:   You can identify it.  Is there any particular one?

MR BUCHANAN:   If you can just hand all three of them back because I know one of them should have it.

HIS HONOUR:   All right.

MR BUCHANAN:   It appears I may have a page or two missing from that one, your Honour.  Your Honour, if I might hand this copy back, this is the writ of mandamus against the federal Attorney-General.

HIS HONOUR:   Yes, I recall seeing, I think, that document somewhere in the papers.

MR BUCHANAN:   Your Honour, on page 26 ‑ ‑ ‑

HIS HONOUR:   It is actually page 36 which is why, I think, you have led me astray.

MR BUCHANAN:   I am sorry about that.  On page 36, but more importantly page 37, you will see the enormous efforts which I have gone to, and enormous cost which I have gone to, to outline the criminal activity and request performance of officers of the Commonwealth across the country requesting - all I am merely requesting is that this be investigated by federal police, the Attorney-General’s Department, the Minister for Justice, the Minister for Education, Communication, Health, the Commissioner for the Australian Federal Police, the Commonwealth Ombudsman, the Privacy Commissioner, the Discrimination Commissioner, the Minister for Foreign Affairs and the Prime Minister and I have requested performance of their duty and I have letters back from them basically saying, “This looks” - well, perhaps the most eventful politician - the most eventful comment from a politician was, “It sounds more like a Harrison Ford movie”, which is really ridiculous, your Honour, because I am trying to expose this criminal activity. 

I have gone to all efforts and, in fact, your Honour, I have started a 12‑week campaign whereby I file one application every week in the High Court against a relevant officer of the Commonwealth whom I have already requested performance of.  I have outlined what is going on.  I have developed such a rapport with their office I can now speak to them and I do not even have to say who I am, they recognise my voice.

Your Honour, despite that, they are not investigating, they are not looking after what is under their portfolios as Ministers, police commissioners, Directors of Public Prosecutions, Ombudsmen, you name it, and upon that point I had to do some research and upon researching I realised that the High Court under section 75(v) of the Australian Constitution Act, there is a section which whereby you can request performance of duty of an officer of the Commonwealth which basically is perhaps the most - well, without doubt the last resort medium in which you can use to request performance of their duty.  All I am requesting is that they investigate this, they look into what is going on in the High Court application.

HIS HONOUR:   No, you are not just asking for that, Mr Buchanan, you are asking for the issue of warrants, for the arrest of persons.  It seems to me, on a reading of something that is in the papers you are asking for their conviction, for them to be dealt with by way of sentencing.

MR BUCHANAN:   Your Honour, they have to go before a court first, do they not?  I mean, they cannot just be convicted.  They have to go before a court.

HIS HONOUR:   I am just pointing out to you the range of what you are seeking in these proceedings.

MR BUCHANAN:   Your Honour, I would not want someone to just be arrested and not investigated, charged, remanded and prosecuted.

HIS HONOUR:   All right, I understand what you are saying.

MR BUCHANAN:   I feel it is necessary, if one is going to be arrested, there has to be a reason to arrest them and prosecute them and charge them and that being so, your Honour, makes it look farcical the fact that the criminal activity of the Debating Society has resulted in 17 arrests of myself, 21 charges, 60 days in remand, 80 days in court, 100 court appearances.  Despite that, I have no criminal records.  The most I have on my criminal record, your Honour, which I am embarrassed -and I am so embarrassed I hesitate to tell you.

I have been caught reading newspapers in the university library on three occasions.  I was caught reading the Canberra Times, the Australian and the Sydney Morning Herald.  I was consequently arrested and charged with trespass, your Honour.  I am a student at the Australian National University.  Now, why - you know, as I ‑ ‑ ‑

HIS HONOUR:   That may be, but this is what you are doing, you are ‑ ‑ ‑

MR BUCHANAN:   The courts are being abused, your Honour.

HIS HONOUR:   ‑ ‑ ‑ you are going away from the matters in hand and talking about a range of matters which simply have nothing to do with these present applications.

MR BUCHANAN:   Your Honour, you will see that they are in the ‑ ‑ ‑

HIS HONOUR:   I think you really have to come to the point fairly quickly, Mr Buchanan.  You have had a fairly good run this afternoon.

MR BUCHANAN: Okay. The point is, your Honour, one, the applicant has requested performance of duty of these officers of the Commonwealth; two, the performance has been refused or neglected; three, where the writ is sought pursuant to section 75 of the Constitution, the authority requested to act was an office of the Commonwealth as provided by that section. I have met that criteria, your Honour, as is outlined in the Butterworths interpretation of the High Court Rules and the Constitution and upon having met that criteria, which is clearly outlined in each one of these High Court applications I have lodged, your Honour, and the grounds for the issue of mandamus, having been met, that having been so, your Honour, the High Court Rules do have a section whereby one can seek prerogative relief, as I am doing, your Honour, and I might point out that to seek prerogative relief one does not usually need to seek leave as one is in this situation right now and, your Honour, I think it is totally defeating the principles of our legal system if one was to try and encapsulate a three-year experience of trauma, death threats, being hit by cars on footpaths - I have only dislocated my collarbone so far, your Honour - multiple arrests, remands, how can I encapsulate that in 13 to 14 minutes, your Honour, and I have not, so I have encapsulated it in a High Court application and I have met the criteria one needs to meet before one can seek prerogative relief.

I have been denied the right to seek prerogative relief because the High Court Senior Registrar - sorry, Deputy Registrar thought the applications were unusual and I have to file 12 High Court applications requesting performance of duty of 12 officers of the Commonwealth as is on page 29, your Honour, before I then take the matter, file much the same application and more detail in the United Nations Commission for Human Rights as I will have exhausted domestic remedies.  My civil, political and social economic cultural rights are being violated and my life is in danger to quote the commander of community relations of the Australian Federal Police, “If you keep going this way to expose this activity then we’ll have a murder to investigate”.

So, your Honour, this is a bit out of the league, at the moment, of what appears to be the ACT Magistrates and the ACT Supreme Courts. I will be before the Federal Court soon discussing these similar things and now I am before the High Court filing one application every week, and section 75(v) of the Constitution Act has so far been denied to me.  I have

established the duty of care, the criteria for negligence, more importantly, the criteria which one needs to meet before one seeks mandamus against an officer of the Commonwealth, your Honour.

HIS HONOUR:   Very well.  Thank you, Mr Buchanan.

I propose to deal with these applications now.  There are before the Court seven applications by Mr Buchanan.  The proposed proceedings to which the applications relate are, in one case, in the form of a writ; in the other cases, in the form of an application for prerogative relief by way of mandamus.  In five of these matters, including the proposed writ, there has been a direction by a Justice, pursuant to Order 58 rule 4(3) of the High Court Rules, the process not issue “without the leave of a Justice”.  In those cases Mr Buchanan seeks leave to issue that process.  In the other two matters, the application is, in effect, for an order nisi. 

The proposed writ is against the Chief Justice in his capacity as patron of the Australian National University Debating Society.  It contains a recital of various events, culminating in a claim that the Chief Justice failed to investigate various activities of that society and its members.

Nowhere in those papers am I able to find anything which could conceivably give rise to a cause of action against the Chief Justice by reason of his office of patron, or otherwise. 

The proposed applications for prerogative relief are against Ministers of the Crown, and in one case against the Chief Justice.  In the main, they relate to the affairs of the Australian National University Debating Society and detail events which in many cases have no apparent connection with those affairs.  Nor is there any foundation for relief by way of mandamus against any of the persons named as respondents in those applications.  Those proceedings are further misconceived in that the orders for mandamus sought include orders that the respondents themselves take proceedings by way of mandamus against other Ministers for the issue of warrants against a number of people.

Nothing in the papers relating to the applications for prerogative relief, whether relating to the office of the persons concerned or the events alleged by the applicant, reveals anything that would justify the making of an order nisi in any of these cases. 

In each case, the proposed process may fairly be described as frivolous and as an abuse of process of the Court .  It follows that each application for leave to issue process in the five matters in which there has been a direction must be refused, and that the two applications in which no direction has been given must also be refused. 

The order of the Court is that each of the seven applications be dismissed.  The Court will now adjourn.

AT 3.14 PM THE MATTER WAS ADJOURNED SINE DIE