Clemens v Department of Defence

[2008] HCATrans 179

[2008] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M152 of 2007

B e t w e e n -

DAVID CLEMENS

Plaintiff

and

DEPARTMENT OF DEFENCE

Defendant

Summons for Directions

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 MAY 2008, AT 9.35 AM

Copyright in the High Court of Australia

MR D.J. CLEMENS appeared in person.

MR C.J. HORAN:   If the Court pleases, I appear for the defendant, Commonwealth of Australia.  (instructed by DLA Phillips Fox)

HER HONOUR:   Mr Clemens, I understand you have filed a writ of summons and a statement of claim naming the Department of Defence as the defendant and you are seeking directions today.

MR CLEMENS:   That is correct.

HER HONOUR:   Yes, thank you.  Yes, Mr Horan.

MR HORAN:   Your Honour, the defendant proposes to apply for summary dismissal pursuant to rule 27.09.4 of the High Court Rules 2004 on the basis that the proceeding either “does not disclose a cause of action” or is “frivolous or vexatious” or is otherwise “an abuse of the process of the Court”.

HER HONOUR:   So you propose to make that application and file material in support of the requisite summons.

MR HORAN:   Yes, your Honour, and together with that there may also be in the alternative orders sought under sub‑rules 5 and 6 of the same rule.

HER HONOUR:   Yes.

MR HORAN:   In my submission, today the Court should make directions in relation to the filing and hearing of such an application so that, firstly, directions for the defendant to file and serve any summons seeking summary disposition under the said rule, together with any affidavits in support and an outline of submissions, and then for the plaintiff to file and serve any affidavits in response and an outline of submissions and then adjourning the directions to the return date of any summons filed.  Your Honour may be aware of some of the background to this proceeding which will ultimately have to be a matter of evidence in relation to a summons, but ‑ ‑ ‑

HER HONOUR:   I am aware of a similar proceeding with a different defendant, Comcare, as a I recollect it, and I am aware of a remitter of a similar proceeding by my colleague, Justice Hayne, and I am aware from reading the transcript that there was an issue – I think Mr Hanks appeared on that occasion and there was an issue about remitter under section 44 of the Judiciary Act and orders pursuant to Victorian legislation in relation to a declaration of a person as a vexatious litigant.  That is my rough appreciation.

MR HORAN:   Yes.

HER HONOUR:   Now, during the course of reading that and also reading Mr Clemens’ material, I became aware that Justice Williams, I believe, of the Supreme Court, made an order, as I recollect it, in August of 2003, the effect of which was not to permit Mr Clemens to proceed.  Without knowing what her Honour’s reasons were, and you might turn your mind to whether that is part of the evidence, or Mr Clemens may seek to make it part of the evidence, I have no understanding of whether or not the “section 44 issue” was dealt with in her Honour’s reasons or whether her Honour’s reasons for refusing Mr Clemens leave to proceed dealt with entirely discrete matters such as questions of whether or not the proceeding was frivolous or vexatious or an abuse of process.  So this Court needs to be properly informed of what happened on the last occasion.

MR HORAN:   Yes. Just by way of very brief explanation, without pre‑empting what will ultimately be put in evidence, an order was made some time ago, I think in the late 90s, declaring the plaintiff to be a vexatious litigant pursuant to section 21 of the Supreme Court Act 1986 (Vic) and ordering that he not commence or continue proceedings in any State court without leave of the Court and the application dealt with by Justice Williams was an application to continue the proceeding that Justice Hayne had remitted.

HER HONOUR:   Yes.

MR HORAN:   Her Honour refused that application for leave.  There has since been an application by the plaintiff which was heard by Justice Harper of the Supreme Court in November last year for similar orders, leave either to continue that proceeding or to commence a fresh proceeding of a similar nature and that was refused in November last year.  Now, it is in those circumstances that the defendant has taken the view that the best course for these proceedings is for this Court to, at least initially, determine questions of summary disposition pursuant to the rule before remitting the proceeding because, of course, on remittal the plaintiff would face the same obstacles that he has faced on the two previous occasions of having to then apply to obtain leave from the Supreme Court.  So in that sense the plaintiff and the defendant agree that that proceeding should not be remitted ‑ ‑ ‑

HER HONOUR:   Until the question of summary dismissal has been determined in this Court.

MR HORAN:   Yes, and then if necessary it may be that, in my submission, the Court would make orders under the summary disposition rule and any question of remittal could be dealt with in light of the result of any such summons if there were still anything left to determine.

HER HONOUR:   That seems an appropriate course and I dare say it suits Mr Clemens to have the matter remain in this Court for the time being for the purposes of the determination of that matter.  You need to bear in mind what Justice Hayne was saying on the previous occasion in relation to a concern Justice Hayne expressed about the intersection, if you like, between section 44 of the Judiciary Act and the powers to remit and the Victorian legislation.

MR HORAN:   Yes.

HER HONOUR:   Have you read that transcript, Mr Horan?

MR HORAN:   I have.  I think in one sense dealing with the matter in the way the defendant proposes avoids the issue raised by Justice Hayne which was whether on remittal the order made by the Supreme Court under the Supreme Court Act would be applicable so as to impose a leave requirement on the continuation of proceedings which had been commenced in this Court and which had been ordered to be remitted by this Court now it is ‑ ‑ ‑

HER HONOUR:   I think Mr Hanks gave an indication that the opposition to the leave to proceed would not be on every possible ground, but would be on certain identified grounds, and for this Court to properly deal with summary dismissal of these fresh proceedings there might be the need to understand how Mr Hanks’ undertaking played out.  It was not a formal undertaking but several assurances were given and recorded in the transcript about which grounds would and would not be taken by your client in relation to opposing the application for leave, it might or it might not be necessary – I am not really expressing a view, but it is something to bear in mind that it may bear upon the summary dismissal of this proceeding.

MR HORAN:   Yes, it may, your Honour.  I think what happened on the last occasion was ‑ ‑ ‑

HER HONOUR:   It may not, but ‑ ‑ ‑

MR HORAN:   ‑ ‑ ‑ Mr Hanks indicated that the defendant would not oppose any application for leave under the Supreme Court Act and as it turned out that application, which ordinarily is an ex parte application, my understanding is that there was no appearance by the defendant and that

Justice Williams nevertheless was not satisfied of the requisite matters and refused leave to continue.

HER HONOUR:   Yes, I see.  There must be a ruling – I have seen a copy of her Honour’s order, that is available, but I do not know what her reasons were.

MR HORAN:   Yes, well all of that material will be put before the Court on the hearing of the defendant’s summons.  If the Court pleases.

HER HONOUR:   Thank you.  Mr Clemens, am I right to assume that it would be your preference too that this matter remain in this Court and that any application which is to be made by the defendant for summary disposition be heard in this Court prior to any question of remitter?

MR CLEMENS:   Yes.  Now, if I may, your Honour – I mean no disrespect and I do hope you understand the way I am talking.  In relation to the application which was before her Honour, Justice Williams, seeking leave to continue a matter which was remitted, the reasons for her Honour’s dismissal of my application was basically I relied heavily upon the order of his Honour, Justice Hayne, of this jurisdiction of law.  I did not place before her Honour any relevant documentation to support my cause of action.  Now, what was said in a formal atmosphere was informal.  There were comments made by her Honour to me and there were comments made by myself to her Honour.

HER HONOUR:   Have you obtained a transcript of the hearing before Justice Williams, Mr Clemens?

MR CLEMENS:   No, your Honour, I do not think there was a transcript made.

HER HONOUR:   You may well be right.

MR CLEMENS:   But the reasons which were stated to me was the application was dismissed because I did not put any documentation before her Honour.

HER HONOUR:   Yes, I see.

MR CLEMENS:   Now, prior to commencing this action for this jurisdiction I did approach the Supreme Court, once again seeking leave to commence or recommence or to continue and this time I placed most of the documentation which I had before me, which was before this Court, and fresh evidence which I came into ‑ ‑ ‑

HER HONOUR:   That is before Justice Harper, is it?

MR CLEMENS:   Before his Honour, Justice Harper.

HER HONOUR:   Yes.

MR CLEMENS:   Now, my understanding was that the application was refused because the matter was clearly foredoomed to fail if it continued before the County Court.

HER HONOUR:   So that was Justice Harper’s stated reason, was it?

MR CLEMENS:   Well, that was the assumption I assumed.  Now, in relation to this vexatious litigant issue I have come a long way since 1998, once being declared a vexatious litigant.  I have had a number of successes which should be taken into consideration.  I have just been recently successful before the Melbourne Magistrates Court.

Now, the grounds upon which a justice of the Supreme Court refuses or dismisses my applications for leave to commence under section 21(4) or section 21(3) of the Supreme Court Act 1986 basically is if the matter is clearly foredoomed to fail. So that is why I assumed Justice Harper, when he refused my application, that was the grounds upon which he relied.

HER HONOUR:   Yes.

MR CLEMENS:   Now, the statement of claim before him is totally different to the statement of claim which is before this jurisdiction of law.  If your Honour read my affidavit material ‑ ‑ ‑

HER HONOUR:   Yes.

MR CLEMENS:   ‑ ‑ ‑ I have investigated it, meaning no disrespect, as far as the various sections of the Constitution are concerned and the Judiciary Act.  I am well within my constitutional right to invoke this jurisdiction of law.  I am well within my constitutional right to have this jurisdiction of law hear and determine this matter ‑ ‑ ‑

HER HONOUR:   All right.  Now, you appreciate that Mr Horan is seeking directions for time to file and serve an application seeking summary dismissal of your proceeding.  That may involve quite difficult legal issues.  The phrase “foredoomed to fail” is one which is not peculiar to Justice Harper.  It is a familiar phrase used in the context of summary dismissal and in that context it might be useful for you to be aware that it is possible to approach the Victorian Bar or the Law Institute or an institution known as PILCH in order to get assistance.  Even if you wish to appear yourself it may be possible to get assistance pro bono in relation to getting on top of the difficult legal issues which may be raised in the other side’s material.

I just mention that.  You can ignore it completely if you wish, but I mention that on the basis that that may be a source of assistance to you in dealing with what might be quite complex legal issues.  I will make sure, irrespective of whether you wish to heed that suggestion, that you have a proper amount of time within which to answer the material put against you as a basis for summary dismissal.

It is probably not fruitful to say too much more about the possible merits at this stage because at the moment neither you nor I know the precise basis upon which the defendant will seek summary dismissal, but I am grateful for your assistance in giving an indication to me of your understanding and appreciation of the bases upon which Justice Williams and Justice Harper have made various rulings.

MR CLEMENS:   Yes, your Honour, and your Honour would be also familiar with the fact that I am quite capable to respond to any argument that the defendant’s lawyers raise before this jurisdiction of law and more probable than not, the grounds upon which they intend to refer to and rely upon are similar and the same as the grounds which have been argued or agitated before this jurisdiction and once or twice before his Honour, Justice Hayne.

HER HONOUR:   Very well.  I think what I will do now is just look at a timetable and make some directions which will allow certain periods of time for the taking of necessary steps.

MR CLEMENS:   If your Honour pleases, meaning no disrespect, you did raise a subject, time, which is an economy I do not have and any orders in relation to the defendant’s lawyers’ wants, could they be expeditious?

HER HONOUR:   Yes.

MR CLEMENS:   I seek leave of the Court to tender before your Honour, if I may, some medical evidence which I have referred to and relied upon in my affidavit material.

HER HONOUR:   Have you shown Mr Horan a copy of that?

MR CLEMENS:   No, not as yet.  I obtained a copy this morning.

HER HONOUR:   Perhaps I will leave ‑ ‑ ‑

MR CLEMENS:   Basically the medical evidence is self‑explaining and self‑explanatory.  I have suffered vital lung capacity – loss of vital lung capacity and also my lungs have been aged at 102.

HER HONOUR:   All right.  I will accept that document as part of your affidavit material.  Whether there is an argument about it or not can be postponed till another day, but that is just supplementing your affidavit material?

MR CLEMENS:   Yes, your Honour, and the fact which I am trying to agitate is the seriousness and the urgency.

HER HONOUR:   Yes.  If you sit down I will ask Mr Horan how much time he needs in order to prepare his material.

MR CLEMENS:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Horan.

MR HORAN:   If your Honour pleases, I would propose a period of four weeks for the filing of the defendant’s summons, affidavit and ‑ ‑ ‑

HER HONOUR:   3 June?

MR HORAN:   Yes, your Honour.

HER HONOUR: The defendant is to file and serve any summons seeking summary disposal of this proceeding pursuant to the High Court Rules with an affidavit in support and an outline of submissions on or before 4.00 pm on 3 June 2008.

Now, Mr Clemens, shall I allow you a further month within which to respond or would you like a little more time than that?

MR CLEMENS:   A month should suffice.

HER HONOUR:   Very well.  You can always approach the Court if you cannot completely comply with that requirement.  I order that the respondent file and serve any affidavit material and an outline of submissions in response to the defendant’s affidavit material and outline of submissions on or before 4.00 pm on 1 July 2008.  I will adjourn the summons over till 1 July 2008 and reserve the costs.

MR HORAN:   If your Honour pleases.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 9.57 AM THE MATTER WAS ADJOURNED