Clarkson v Her Majesty in Right of Her Commonwealth of Australia & Ors

[2007] HCATrans 541

[2007] HCATrans 541

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S197 of 2007

B e t w e e n -

MARK ALFRED CLARKSON

Plaintiff

and

HER MAJESTY IN RIGHT OF HER COMMONWEALTH OF AUSTRALIA

First Defendant

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Second Defendant

HER MAJESTY IN RIGHT OF HER STATE OF NEW SOUTH WALES

Third Defendant

JUSTICES OF THE COURT OF CRIMINAL APPEAL OF NEW SOUTH WALES

Fourth Defendant

HIS HONOUR JUDGE G S HOSKING SC OF THE DISTRICT COURT OF NEW SOUTH WALES

Fifth Defendant

STATE NSW COMMISSIONER OF CORRECTIVE SERVICES

Sixth Defendant

Office of the Registry
  Sydney  No S213 of 2007

B e t w e e n -

MARK ALFRED CLARKSON

Plaintiff

and

HER MAJESTY IN RIGHT OF HER COMMONWEALTH OF AUSTRALIA

First Defendant

THE JUSTICES OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

COMMONWEALTH OMBUDSMAN

Third Defendant

HER MAJESTY IN RIGHT OF HER STATE OF NEW SOUTH WALES

Fourth Defendant

STATE NSW OMBUDSMAN

Fifth Defendant

STATE NSW COMMISSIONER OF CORRECTIVE SERVICES

Sixth Defendant

GEO GROUP AUSTRALIA PTY LTD

Seventh Defendant

Applications for order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 10 SEPTEMBER 2007, AT 9.46 AM

Copyright in the High Court of Australia

__________________

MR M.A. CLARKSON appeared in person.

MR A. MARKUS:   If your Honour pleases, I appear for the first defendant in S197 of 2007 and the first and third defendants in S213 of 2007.  (instructed by Australian Government Solicitor)

MR P. ROBERTS, SC:   If it please your Honour, I appear for the second and third defendants in S197 of 2007.  (instructed by Commonwealth Director of Public Prosecutions and Crown Solicitor’s Office)

MR M.A. IZZO:   If it please your Honour, I appear for the sixth defendant in S197 of 2007 and S213 of 2007.  (instructed by Crown Solicitor’s Office)

MS L.A. WALKER:   May if please the Court, I appear for the seventh defendant in S213 of 2007.  (instructed by Davidson Legal).

HIS HONOUR:   The Registrar has been advised by the solicitors for the fourth and fifth defendants in S197 of 2007 that the fourth and fifth defendants will submit to the order of the Court save as to costs.  The Registrar has been advised by the solicitors for the fourth defendant in S213 of 2007 that the fourth defendant will submit to the order of the Court save as to costs.  We have no appearance filed for the fifth defendant.

MR MARKUS:   Your Honour, I should indicate to your Honour that the Australian Government Solicitor’s office also holds instructions from the District Registrar for the ACT Registry of the Federal Court of Australia in relation to the Justices of the Federal Court of Australia.  The position our office has taken is that as presently named the second defendant is not the proper party.

HIS HONOUR:   The correct party is the Federal Court of Australia?

MR MARKUS:   I think the correct party would be Justices Madgwick and Finn respectively, who made orders that are subject to challenge and if the plaintiff seeks to amend the proceedings in substance to substitute or to join either of those or both of those judges of the Federal Court of Australia, my instructions are to indicate to your Honour that their Honours would submit to any order of the Court save as to costs.

HIS HONOUR:   Mr Clarkson, do you have any objection to amending your process in S213 of 2007 to delete as the second defendant the justices of the Federal Court of Australia and substitute Justices Madgwick and Finn?

MR CLARKSON:   I am entirely in your Honour’s hands but you will see from my submissions I am not sure that is the preferred course.  I think probably Federal Court of Australia and I have set some submissions out there as to what the normal practice is.  I just think it is undesirable to name the judges personally.  It is an order we seek against the Federal Court and if the Federal Court can be the defendant, then the Federal Court ought to be, but I am in your Honour’s hands.

HIS HONOUR:   Does any other party object to the amendment that Mr Markus desires?  I will make that amendment and it follows from what Mr Markus has said that the second defendant submits to any order of the Court except as to costs.  Very well.  Mr Clarkson, you understand that in both proceedings the parties are contending that your proceedings are an abuse of process and are vexatious and ought to be dismissed?

MR CLARKSON:   Yes, I understand that, your Honour.

HIS HONOUR:   There are one or two other reasons, but their basic reason is that in each case the decisions you are challenging are the subject of special leave applications to this Court which are as yet undetermined.

MR CLARKSON:   Does your Honour have the submissions in reply I filed this morning?

HIS HONOUR:   Yes.

MR CLARKSON:   Might I start with S197, your Honour?

HIS HONOUR:   Yes.  I should just indicate that it is the custom in this type of application for the argument of any one party to be limited to 20 minutes.

MR CLARKSON:   I will be very brief, your Honour.

HIS HONOUR:   Very well.  You were directing me to your submissions.

MR CLARKSON:   In reply, your Honour, the ones filed this morning.  I have a sealed copy here if your Honour cannot immediately find them.

HIS HONOUR:   Actually, I have some submissions in reply which were filed on 10 September in S213 of 2007.

MR CLARKSON:   Yes, there were also ones in S197, your Honour, perhaps I might hand those to your Honour?

HIS HONOUR:   I do not have a copy of those.  I take it the other parties have got ‑ ‑ ‑

MR CLARKSON:   I hope so.  I have given the other parties sealed copies, your Honour.

HIS HONOUR:   Let me just read these.  Yes, I have read those.

MR CLARKSON:   Your Honour, it simply comes down to this.  I accept the authority of this Court’s decision in the Heinrich Case, if that is how I am pronouncing it correctly, it is number 2 on my list of authorities, Re Heerey; Ex parte Heinrich 185 ALR 106. The ratio decidendi of that case appears to be that if the matter can proceed by way of a special leave it ought to and I accept that. What it comes down to is, in relation to the Court of Criminal Appeal, a judgment de jure against which it is possible to bring an application for special leave. If there is, and your Honour is of that view, then I accept the matter ought to proceed by way of special leave.

As I have said in my submissions in reply, I am not helped and perhaps your Honour is not helped because we do not know what the Crown position is in relation to that because the submissions from the Crown say that this is an abuse of process but they do not address the questions of law which I have raised and which were dealt with in some length in my written submissions that were filed with the application to show cause.

It really comes down to my submission that the New South Wales Court of Criminal Appeal only has jurisdiction conferred by the Criminal Appeal Act.  They have no jurisdiction other than jurisdiction conferred by the Criminal Appeal Act and it is the responsibility of an appellant like me to bring myself within that jurisdiction and if I fail to do so they have no jurisdiction to hear and determine an appeal.  In my case, the failure to bring myself within their jurisdiction was not through lack of trying.  To put it in its nutshell, they failed to hear and determine an application for an extension of time within which to lodge applications for leave to appeal and thereafter failed to determine the applications for leave to appeal.

In my submission, the subsequent judgment is just a purported judgment, it is made absent of jurisdiction, it is a nullity, it is fundamentally flawed in a nullity, there is no judgement de jure against which it is possible to bring an application for special leave pursuant to section 35 of the Judiciary Act because section 35 of the Judiciary Act deals with judgments, not purported judgment.  That is it in a nutshell.

HIS HONOUR:   Yes, thank you.  I should just say, Mr Clarkson, and for the benefit of other parties, in proceedings S197 I read your affidavit of 13 April 2007, your substantial affidavit, and in S213 I read your affidavit of 8 May 2007.  I take it no one objects to the contents of those affidavits or wants to cross-examine Mr Clarkson?  Very well.  I need not trouble the other parties.

S197 of 2007 is an application in the original jurisdiction of the court, the background to which is as follows.  On 26 November 2004 the plaintiff was found guilty by a jury in the Sydney District Court of all 16 counts in an indictment which had been presented by the Director of Public Prosecutions of the Commonwealth.  The plaintiff was sentenced to a total period of imprisonment of two years and four months, his release date being contemplated as 25 March 2007.  He was so released.

Following that conviction and the imposing of that sentence the plaintiff acting in person has instituted a number of proceedings relating to his conviction and sentence.  He commenced proceedings in the New South Wales Court of Criminal Appeal appealing against conviction and seeking leave to appeal against sentence.  He also filed in the registry of the Supreme Court of New South Wales documents seeking prerogative relief in relation to the convictions and seeking the quashing of those convictions and the consequential sentence for error of law apparent on the face of the record.  He also sought to quash warrants of imprisonment in relation to four of the counts which were counts alleging offences against State law.

He also filed a summons and an application for an order to show cause in this Court seeking relief in similar terms to that claimed in his application filed in the Supreme Court.  On 14 February 2007 Justice Gummow made orders remitting those proceedings to the Supreme Court of New South Wales common law division. 

On 12 February 2007 the New South Wales Court of Appeal and the New South Wales Court of Criminal Appeal constituted by the same judges heard the plaintiff’s application to the Supreme Court for prerogative relief and the plaintiff’s appeals against conviction and sentence.  On 22 March 2007 the Court of Appeal gave judgment dismissing the plaintiff’s application and summons remitted from this Court and dismissing the plaintiff’s application to the Supreme Court for prerogative relief (Clarkson v Commission of Corrective Services New South Wales and Others [2007] NSWCA 58). On the same date the Court of Criminal Appeal gave judgment dismissing the plaintiff’s appeals against conviction allowing his application for leave to appeal against sentence but dismissing that appeal (Clarkson v The Queen [2007] NSWCCA 70).

In addition to the present application the plaintiff is seeking from this Court special leave to appeal from the judgment of the New South Wales Court of Appeal and from the judgment of the New South Wales Court of Criminal Appeal, the respective applications being numbered S200 of 2007 and S199 of 2007.  The plaintiff has also instituted three sets of proceedings in this Court which relate to complaints and proceedings instituted by the plaintiff in the Federal Court of Australia and in the Human Rights and Equal Opportunity Commission concerning the way he was treated whilst incarcerated.  In these proceedings the plaintiff is applying to the Court in its original jurisdiction to quash the decisions of the Court of Appeal and the Court of Criminal Appeal and also the convictions and sentences in the District Court which led to the proceedings in the Court of Appeal and the Court of Criminal Appeal. 

The first, second, third and sixth defendants apply for the proceedings to be dismissed on the ground that they are vexatious and an abuse of process.  The point which is particularly taken by counsel for the second and third defendants is that the plaintiff is seeking to challenge the decisions of the Court of Appeal and the Court of Criminal Appeal by way of special leave applications to the High Court and it is an abuse of process to pursue the present challenge in the original jurisdiction in view of the special leave applications.

The plaintiff accepts that if there is a judgment of the Court of Criminal Appeal – to use his expression “de jure” – against which an application for special leave to appeal can be brought, it is inappropriate to prosecute the present applications.  He contests that there is a judgment of the Court of Criminal Appeal “de jure”.  The question whether there is jurisdiction to bring an application for special leave to appeal against the judgment of the Court of Criminal Appeal is a question which can be decided, if it arises, in the applicant’s special leave application.  Accordingly, the submissions of the second and third defendant are sound.

There are other claims for relief which do not appear to raise issues which are truly justiciable. In particular, the plaintiff seeks an order pursuant to section 74 of the Constitution – see paragraph 9 of the application on the summons – that this Court certify “that the questions relating to the limits inter se of the constitutional powers of the Commonwealth and the State of New South Wales and the limits or otherwise of Her Majesty’s sovereignty over each such as ought to be determined by Her Majesty in Council and to permit the applicant to appeal to the judicial committee of the Privy Council from the decision of this honourable Court”.

This Court has not made any decision of the kind described in section 74 of the Constitution. That is a sufficient ground for refusing the order and for concluding that the proceedings are an abuse of process so far as they seek that order.

I turn to proceedings S213 of 2007.  That too is an application in the original jurisdiction of the court.  The background to that application is as follows.  On 19 June 2006 the plaintiff filed an application for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of decisions made while he was in custody by the Commonwealth, the Human Rights and Equal Opportunity Commission, the Commonwealth Ombudsman, the New South Wales Ombudsman, the Commissioner of Corrective Services New South Wales and the GEO Group Australia Pty Ltd.

In essence, each of the decisions made or claimed to have been made related to the plaintiff’s complaints regarding the denial of access to personal computers while he was in custody in the Junee Correctional Centre, his complaints regarding his diet while in custody and other complaints relating to the treatment of federal offenders in New South Wales prisons.

On 13 October 2006 Justice Finn ordered that the application in relation to the first, fourth, fifth and sixth respondents be dismissed (Clarkson v Commonwealth of Australia [2006] FCA 1348). Justice Finn held that the purported decisions, if made as claimed, were not reviewable under the Administrative Decisions (Judicial Review) Act.  On 9 November 2006 the plaintiff filed a notice of motion seeking an extension of time within which to seek leave to appeal and leave to appeal from Justice Finn’s judgment.

The application was heard on 7 December 2006 by Justice Madgwick of the Federal Court.  He extended the time in which the plaintiff could file his application for leave to appeal to that day.  He granted leave to appeal in relation to the costs of the Commonwealth, including as to any Bullock or like order but otherwise he dismissed the application for leave to appeal and ordered the plaintiff to pay the fourth, fifth and sixth respondents’ costs of the motion (Clarkson v Commonwealth [2006] FCA 1766).

On the same day Justice Finn ordered that the application in relation to the third respondent, the Commonwealth Ombudsman, be dismissed (Clarkson v Commonwealth (No 2) [2006] FCA 1839). Justice Finn found that the Commonwealth Ombudsman did not have jurisdiction under the Ombudsman Act 1974 (Cth) to investigate the plaintiff’s complaints.  The plaintiff has filed an application for special leave to appeal from the judgment of Justice Madgwick in Clarkson v The Commonwealth [2006] FCA 1766 (see High Court proceedings No C3 of 2007).

It is an element in the present application by the plaintiff that he is seeking to invoke the original jurisdiction of this Court in anticipation of the possibility that the issues he seeks to raise cannot be dealt with by way of special leave to appeal.  That emerges from page 2, lines 9 to 21 of his written submissions filed on 11 May 2007.  The theory of that part of those submissions is that it is not possible to appeal from a single judge of the Federal Court of Australia to this Court.

The first and third defendants submit that the question of whether an appeal lies to this Court from a judgment of a single judge of the Federal Court exercising the appellate jurisdiction of that court, as Justice Madgwick was, is a matter which may or may not arise for consideration in the plaintiff’s application for special leave.  Those defendants submit, however, that it is not a matter which properly arises for consideration in these proceedings.  They also submit that unless and until the plaintiff is prevented from bringing an appeal from the judgment of Justice Madgwick on the basis that no appeal lies to the High Court from that judgment, as distinct from a decision that refuses special leave on the ground that any appeal would have no prospects of success, the present proceedings are premature and constitute an abuse of process.

I would agree with those submissions of the first and third defendants.  It is to be noted that the sixth defendant presented detailed argument in support of the proposition that an appeal does lie to this Court from a single judge of the Federal Court exercising appellate jurisdiction, but it is not necessary now to resolve the correctness of that widely accepted proposition.

The plaintiff also seeks an order under section 74 of the Constitution. That must be refused for the reasons given in relation to S197 of 2007. Further, so far as the plaintiff is in these proceedings seeking to challenge Justice Finn’s orders in Clarkson v Commonwealth (No 2) [2006] FCA 1839, the correct course, if he is so advised, is to exhaust the appellate process in the Federal Court of Australia if he has not done so and then to seek special leave to appeal. It is not appropriate to apply instead in the original jurisdiction of this Court.

I make the following orders:

1.        The proceedings S197 of 2007 be dismissed with costs.

2.        The proceedings S213 of 2007 be dismissed with costs.

Is there any other order or any flaw in those orders?  Very well.  The Court will adjourn.

AT 10.09 AM THE MATTER WAS CONCLUDED