Desai v Keelty & Ors

[2009] HCATrans 280

[2009] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M91 of 2009

B e t w e e n -

LYDIA DESAI

Applicant

and

MIKE J KEELTY COMMISSIONER AUSTRALIAN FEDERAL POLICE AND COMMONWEALTH OF AUSTRALIA
AND ANDREW METCALFE SECRETARY DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondents

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 OCTOBER 2009, AT 9.30 AM

Copyright in the High Court of Australia

MS L. DESAI appeared in person.

MR S.P. DONAGHUE:   I appear on behalf of all respondents, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Ms Desai, this I understand to be your application by summons of 14 October for orders, in effect, expediting, that is, bringing on quickly, the application for removal, is it?  I have your summons of 14 October.  You seek an order directing the Registrar to remove the proceeding in the Federal Court and you seek an immediate hearing for the making of a declaration.  Is that right?

MS DESAI:   Yes, your Honour.

HIS HONOUR:   Yes. Now, applications for removal under section 40 of the ‑ ‑ ‑

MS DESAI:   Judiciary Act.

HIS HONOUR:   ‑ ‑ ‑ Judiciary Act are governed by, of course, that Act and Part 26 of the Rules of Court.

MS DESAI:   Your Honour, the most important thing is the declaration.

HIS HONOUR:   Yes.

MS DESAI:   Is the declaration which tomorrow is a hearing in which judges in India are committing witch trials because of bribery from the Australian Exclusive Brethren.  Australian citizens have caused this to happen in India and it is a genocide and we will need this genocide to be declared immediately.  That is the actual thing that needs urgency because tomorrow the Indian judges have threatened that they are going to hang our people or psychiatric torture and even murder and so for that reason we have to get this declaration done on the 20th, before the 21st, which is tomorrow.

HIS HONOUR:   Yes.  Now, you seek that relief, do you not, in the proceedings that are in the Federal Court?

MS DESAI:   Yes, of course I do seek that relief in the Federal Court which has been fraternising and socialising with the Indian judges and invited them over ever since the case was in the Federal Court.  So for this reason we have seen that the Australian Federal Court cannot judge a proceeding in which they are inviting Indian judges over after they have got proof against them for genocide. 

Now, the only way for us to stop this genocide from happening is to expose this whole façade.  I mean, we have got a clear‑cut method to do it and we know exactly how to go about it and we are precisely going to go about it unless this Court gives us a declaration.  We are the victims here, we are victims of the genocide and there is nothing else – I mean, I do not know how to spell it out better.

HIS HONOUR:   I have, of course, looked at the material that you have filed.  As I understand it, you would seek to rely on an affidavit which you swore on 13 October, a further affidavit that you swore on 14 October and an affidavit that you swore on 19 October.  Is that right?

MS DESAI:   Yes.  There is one affidavit on the 14th, there is an application on the 14th and an affidavit on the 19th.

HIS HONOUR:   Yes, I have looked at all of those.

MS DESAI:   That is good, your Honour.

HIS HONOUR:   I shall leave aside for the moment whether they are received.  There is an affidavit in answer by Emily Jane Nance of 19 October.  Do you have that affidavit?

MS DESAI:   Yes, I do.

HIS HONOUR:   Is there any reason why I should not receive that affidavit?

MS DESAI:   No, you can receive that affidavit.

HIS HONOUR:   Yes.  So that is the material that is before me, is it not, that you seek to have before me, namely, your three affidavits.  Is that right?

MS DESAI:   Yes, your Honour.

HIS HONOUR:   Your application.

MS DESAI:   Yes.

HIS HONOUR:   The summons.

MS DESAI:   Yes.

HIS HONOUR:   The various exhibits.

MS DESAI:   Yes.

HIS HONOUR:   And there is the affidavit of Ms Nance.

MS DESAI:   Yes.

HIS HONOUR:   Yes.  Now, I have looked at all of that material.  I understand, or believe I understand, therefore, the nature of the allegations you make and the orders that you seek.  What else is it that you would wish to add to what is already in writing?

MS DESAI:   What else is needed to be added to what else is in writing?  I mean, if a group started it because they are a spiritual group and with an intent being destroyed, not only by the Indian judges and the Australian Exclusive Brethren, they are fanatical doctrines.  I am a witch in India.  I am considered a witch and being hounded.  I mean, there is no other proof.  Witch trials are being conducted by the courts, the Indian judiciary.  Now, witch trials are being conducted by courts, so what stops – this is a very fragile façade, the court system.  Now, all we have to do is expose it.  There are a whole lot of people – there were thousands of people, millions of people across the world who do not believe in this façade.  I do not want to make it my life.  I do not want to put all my energy, my life energy, into fighting this façade.  All I am asking is to give me my life back, save my life.

I have been termed a witch.  Witches are not spared.  Exclusive Brethren doctrine cannot become the rule of law.  Democracy has to be upheld in which everyone gets an equal ruling before the law.  I am sorry, I am an educationist, a very loved person.  We can teach five years matter in seven days.  People said it was impossible.  We have gone ahead and done it.  We are very creative people.  Now, all this creative genius we are going to switch to words exposing this façade because we have no life.  I mean, I am here because I have got nothing else left.  I have truly got nothing left.  All that is left is now fighting the system.

Now, unless this stops and a declaration is put that the Indian judges have committed witch trials, which is a genocide, or even you can phone your friends and tell them, “Please stop this genocide”.  Even if you just have a phone call to them and tell them, “Stop the genocide”.  All witch trial allegations against us stop.  No more media against us and we can continue with our lives as usual.

If we cannot continue with our lives, all our creative energy, this genius energy is going to be – and it is very, very easy to do, I promise you.  We have spoken – we have been here for one year.  We have got a friend who we just know for one month.  They are willing to stand up against the judiciary.  The system is very fragile.  You are holding up these people.  No.  You want justice; do not go to the courts.  It is a well‑known thing.  Now, if they know courts are committing witch trials, Exclusive Brethren mafia are controlling the courts, wow, they would love it. 

The best part is inviting the Indian judges twice after we have put allegations of witch trials being committed in the Federal Court and the Indian judges have come to fraternise and socialise with the Federal Court and seven out of the six High Court judges also have met the Indian judges, so you are obviously very good friends with them.  All you have to do is tell them, “Stop this genocide”.  I promise you we have got nothing to fear and we have got thousands of people across the world, millions.

It is a very easy thing for us to do.  Sure, we are a very small group.  We are being targeted and targeted and targeted.  We would have not come up with this unless we had a strategy.  When we said we could teach five years of music in seven days, people laughed.  Now we have done it.  Now we are telling you we have a way to end this façade.  We truly have a way.  I do not want to spend my time doing this.  I am a creative person.  I promise you, I am a peace‑loving person.  I am an educationist.  But I do not want to waste my valuable life doing this, but if you force me to, I am sorry, I have no option.

So all I am asking is – I am beseeching you at this point, do the right thing.  Declare it a genocide or tell those Indian judges to stop.  We are mercenary.  We may act as we like.  Wow, and you all learn from such people.  You will exchange ideas with such people.  Psychiatric torture, punitive psychiatry, orders.  We do not even need to go far.  One order in the High Court – punitive psychiatry.  Twenty people, 20 of us listed, most of us not even party to a case and get a handful of students and just send them for punitive psychiatry.  A handful, and then if more is needed, you can do whatever you like with them.  Those are written orders from the Supreme Court and the High Court of India.

Those are the people the Federal Court are fraternising with.  That is the record we put on the Federal Court and that is what….. Chief Justice Black had invited them.  Do you know what the Australian public will do if they realise this?  Do you know what they already are ready to do?  I am sorry.  This is it.  Tomorrow are going to be murder orders.  They are going to hang us.  We are fearless, your Honour.  We are absolutely fearless.  I do not want to take this extra step.  Today there are thousands of people watching this hearing, thousands of people across the world watching this hearing.  I promise you we will not stop at anything, absolutely nothing.

HIS HONOUR:   Ms Desai, you will confine your submissions to the issues that are before the Court.  If you make one suggestion of a threat ‑ ‑ ‑

MS DESAI:   I am not threatening.

HIS HONOUR:   Just be quiet and listen to me.

MS DESAI:   I am not ‑ ‑ ‑

HIS HONOUR:   Just be quiet and listen to me. 

MS DESAI:   Yes, your Honour.

HIS HONOUR:   Make one suggestion of a threat, I will have you removed from the courtroom.  Do you understand me?

MS DESAI:   Yes, I understand you.

HIS HONOUR:   Confine your submissions to the issue before the Court.  Proceed.

MS DESAI:   Okay.  The issue before the Court is that a declaration of genocide is imminent before 21 October.  That is the issue.

HIS HONOUR:   Yes.  Is there anything else you wish to say?

MS DESAI:   What else is left to say, your Honour?

HIS HONOUR:   Yes, thank you, Ms Desai.  You may sit down.

MS DESAI:   Thank you.

HIS HONOUR:   Dr Donaghue, I would be grateful if you would address your submissions to, firstly, the question of power of a single Justice to remove and, secondly, whether such an order should be made in this case.

MR DONAGHUE:   Yes, your Honour.  We have proceeded upon the basis that what is sought is not just expedition of the removal application today, but actual removal today.

HIS HONOUR:   That is as I now understand the position to be, hence, my request.

MR DONAGHUE:   Yes.  We have no objection to the Court determining the application for removal and as far as I can tell, on the face of section 46 and rule 26, it does not appear to be the case that that power is required to be exercised by a Full Court, although we accept that ordinarily that is how the power is exercised.  We submit, your Honour, that for the purposes of the question of removing, we have no objection to the Court referring to the material that your Honour has identified. 

HIS HONOUR:   Leave aside, would you, for the moment whether any of that material is to be received.

MR DONAGHUE:   That is what I would seek.

HIS HONOUR:   I want you to confine your submissions to the question of my power to order removal and whether I should order removal.  Those are the two issues on which you are to be heard.

MR DONAGHUE:   Yes, your Honour.  In relation to the question of whether the power be exercised, in my submission, there are three reasons why it is clear in this matter that the power should not be exercised.  First, the power is ordinarily exercised to remove constitutional matters that are ripe for determination.  Your Honour made an observation to that effect in the case of Bienstein v Bienstein (2003) 195 ALR 225 which was approved by three members of the Full Court on appeal.

Here, while there are constitutional issues of a kind raised in the Federal Court proceeding below when a 78B notice was filed, the fact is that there are no agreed facts, there are no findings of fact and there is no prospect that there would be agreed facts in relation to the matters that are in issue in the Federal Court proceeding and, as this Court has regularly acknowledged, it is not an appropriate forum for the resolution of contested questions of fact and for that reason we submit that the Federal Court is a more appropriate court to determine these questions, at least in the first instance.

HIS HONOUR:   Do I understand that the defendants in the Federal Court proceedings moved for dismissal of the proceeding in that court?

MR DONAGHUE:   Yes, they did.

HIS HONOUR:   Why has that not come on for hearing?

MR DONAGHUE:   We do not know, your Honour.  The motion was filed in April.

HIS HONOUR:   What steps has the defendant taken to bring the matter on for hearing?

MR DONAGHUE:   Your Honour, the motion having been filed in April and submissions having been filed in late May and then in early June, the matters being before Justice North for listing, my understanding is that his Honour has been absent from the country for some part of that period.

HIS HONOUR:   Has the defendant sought to bring the matter on before another judge of the Federal Court?

MR DONAGHUE:   No, your Honour, we have not.

HIS HONOUR:   Why not?

MR DONAGHUE:   Well, your Honour, the application having been made to dismiss the proceedings, we took the view that it was for the Federal Court to determine the time at which that application would be determined.  We moved promptly ‑ ‑ ‑

HIS HONOUR:   Applications of this kind are to be dealt with promptly.  You have an applicant who says that the matter is urgent.

MR DONAGHUE:   Yes.

HIS HONOUR:   I express no view upon whether that view is well founded.  That is the view advocated by the applicant.

MR DONAGHUE:   Indeed.

HIS HONOUR:   The respondent seeks to terminate that proceeding summarily.  Why has the matter not come on?  It is unsatisfactory that it has not come on.

MR DONAGHUE:   Your Honour, all I can say is that the urgency that the applicants assert in relation to the proceeding has been brought to his Honour Justice North’s attention many times in directions hearing ‑ ‑ ‑

HIS HONOUR:   How many directions hearings have there been in this proceeding?

MR DONAGHUE:   I can think of at least three.  There may have been ‑ ‑ ‑

HIS HONOUR:   Three.

MR DONAGHUE:   Yes.

HIS HONOUR:   Why three?

MR DONAGHUE:   Your Honour, there was an original hearing, a first directions hearing prior to me being briefed in the matter and I have no personal knowledge of what occurred then, but I understand that his Honour referred the matter under Order 80 of the Federal Court Rules to attempt to get legal assistance.

HIS HONOUR:   I have seen that in the material, yes.

MR DONAGHUE:   So that, I think, explains the original delay.  When the matter came back the applicants indicated that they did not want to take the assistance of ‑ ‑ ‑

HIS HONOUR:   I have seen that in the material too, yes.

MR DONAGHUE:   What then occurred is that the applicants filed a series of motions seeking what was, in effect, final relief of the kind that they sought in the applications.  His Honour dismissed one of those applications.  Another motion was filed bringing the same issues back before the court.  We had, at the first of those directions hearings, indicated that we were prepared for the applicants to be given an opportunity to amend their application before we brought a strike‑out if they were so minded.  They indicated at that hearing that they were happy to produce a document that identified more precisely the legal relief that they sought and the facts that were said to be relevant to that relief and so it was to give them that opportunity that the matter came back to a directions hearing about a month later.  The applicants then did not comply with that order and indicated that they could not do so, and at that point we said if the case is as they seek to put it, then we will apply for summary dismissal under 31A.  I accept what your Honour says, that the delay is unsatisfactory but, in our submission, there was ‑ ‑ ‑

HIS HONOUR:   Well, there it is.  Why should I remove the matter into this Court, or why should I not remove the matter into this Court?  You say I should not, the applicant says I should.

MR DONAGHUE:   Yes.  You should not.

HIS HONOUR:   What should I do?

MR DONAGHUE:   You should dismiss the application for removal and allow the matter to be determined in the Federal Court essentially because, one, the factual foundation is not apt for determination of the issues in this Court; two, there is no legal point raised by the proceeding that warrants the attention of this Court.  Your Honour may have seen that we filed quite detailed written submissions that are exhibited to Ms Nance’s affidavit in support of our application under section 31A and the legal principles that are raised by the case, we submit, are clear.

Those submissions, I think, are at exhibit EJN-12 to Ms Nance’s affidavit and we submit that if your Honour were to look at those submissions, it would be apparent that the legal questions raised do not warrant the attention of this Court.  In particular, we submit that it is plain that an Australian court does not have power to make orders relating to the arrest of Indian judges, that it is plain that an Australian court does not have powers to direct the Executive as to the conduct of Australia’s international relations, for example, in relation to matters such as petitioning the UN or petitioning the Indian Government, that it is plain that an Australian court cannot direct the Federal Police in the specific exercise of the law enforcement functions of that – while there may well be power to require matters to be considered, there is a wide discretion available as to the police in the manner in which they exercise their powers.  So the legal issues raised are not appropriate for determination in the Court. 

Finally, your Honour, your Honour may recall that earlier this year, on 16 March, your Honour made an order directing that the applicants not be permitted to file proceedings in this Court without leave of a judge.

HIS HONOUR:   I directed the Registrar not to receive a particular form of initiating process and Justice Crennan later refused leave to issue that particular process.

MR DONAGHUE:   Which was a process that sought to raise in this Court essentially the same points as are raised in the Federal Court proceeding below and her Honour in refusing the leave to raise that ground made the point that the matters were traversing similar grounds to those raised in the Federal Court proceeding and that the documents in the present application are confusing, prolix and embarrassing in form and we submit that that observation equally applies to the materials that have been filed in the Federal Court proceeding which would be in this Court were the matter to be removed. 

So accepting that, or not raising any objection to the Court considering as presently constituted the application for removal, we submit that no case exists for the exercise of discretion removing the matter into this Court and no acceptable basis has been shown for doing otherwise than allowing the matter to be determined in the Federal Court

HIS HONOUR:   Yes, thank you, Dr Donaghue.  Ms Desai, Dr Donaghue seeks to make three points against you.  As I understand it, those points are as follows.  First, the Federal Court proceedings have not advanced to a point where it would be correct for me to remove them.  That is point one. 

Point two he seeks to make is that there is no legal issue raised in the Federal Court proceedings that is suitable for consideration by this Court.  The third point relates to the attempt to issue process in this Court.  I do not need to hear you about the third of those questions.  I do not need to hear you on any question about the application to issue process in this Court.  Please confine your reply to the other two issues which I have identified to you.

MS DESAI:   Okay.

HIS HONOUR:   Put in summary they are that the proceeding is not ripe, that is not yet ready, and that there is no legal issue suitable.  Do you understand the points you have to answer?

MS DESAI:   Yes, of course I do.

HIS HONOUR:   Would you answer them, please?

MS DESAI:   Yes. Now, the first thing is this Court has original jurisdiction under 75 of the Constitution for matters arising under treaty “In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party” as well as in matters concerning writs. The Federal Court has failed to do its duty and for that reason – and there are three reasons by which a cause can be removed to the High Court. One is if it is a part arising under the Constitution or involving the interpretation and so I have already put that in my application.

Now, basically about the respondents and their reply to the Federal Court, we gave a similar reply on 1 June 2009 which listed out why the Federal Court had to do its duty of preventing an ongoing genocide.  Now, we are not talking about a small crime where someone has robbed someone’s wallet.  We are talking about an ongoing genocide and for that reason let us just look at Article IV of the UN Convention which says even “constitutionally responsible” leaders, “private individuals” or “public officials” all are answerable to a genocide and it cannot be considered as political for the purpose of extradition.

So all about not arresting the Indian judges – we have put provisional arrest warrants on the Indian judges.  We had asked for writs to the Federal Court to direct the AFP – I am sorry, the Australian Government and the Immigration Department to do their duty.  Their duty is the laws by which they have signed, the Parliament laws and the treaty.  Now, genocide is also a part of the Criminal Code Act which becomes a domestic law for which the Federal Court could take action.

So we put all this in reply.  After that we have not had a hearing.  Now there is an ongoing genocide.  Tomorrow there is going to be deaths.  Justice.....has already said, “I am going to hang you” and for that reason not only does the matter have to be immediately removed, a declaration has to be done today otherwise the purpose is not solved at all, in any case.

So we are not asking for just the removal.  Yes, this Court has full jurisdiction and full rights to remove it.  The Australian Federal Court have invited the Indian judges across as well as by law you can remove them.  As I have put forward in my application – I can read that whole part out to you if you like, but you would have already read it.  We need a declaration or we need a phone call or we need something to stop the atrocities that are going to happen tomorrow and that is why this 20th hearing before the 21st was very vital.  Our legal friends have also told us that Dr Donaghue and you have worked together, but in spite of knowing that we ‑ ‑ ‑

HIS HONOUR:   Lest there be any doubt about this, Ms Desai, Dr Donaghue was an associate in my chambers for a year.

MS DESAI:   Yes. 

HIS HONOUR:   That fact is ‑ ‑ ‑

MS DESAI:   But you know what ‑ ‑ ‑

HIS HONOUR:   Just a moment, you will be quiet when I speak.  Do you understand me?

MS DESAI:   Okay, sure.

HIS HONOUR:   The fact that Dr Donaghue worked as an associate in my chambers, now some years ago, is irrelevant to any question that is before me.

MS DESAI:   Yes, your Honour.  In spite of that, your Honour, we want this matter to be stopped immediately and so we have gone ahead with having this 20th hearing before the 21st.  In the second place, this matter does not concern the respondents at all.  Declaration – this is a matter where some Indians are being genocided in India funded by the Australian Brethren, the Australian Government, Police or Immigration have no need to interfere and if they do interfere, it should be a matter for this Court.  If a genocide has happened in India, it is a crime, it is a legal matter.  It is a legal matter that a declaration has to be considered.  So it is not a matter for the respondents at all.  They can literally leave because we are not asking for anything else.  We are only asking for a declaration quickly before the 21st or at least a phone call to tell them to stop their atrocities.

HIS HONOUR:   Yes.  Is there anything else you wish to add?

MS DESAI:   No, your Honour.  Thank you very much.

HIS HONOUR:   Thank you, Ms Desai.

The applicant, Lydia Desai, applies by summons dated 14 October 2009 first for an order directing the removal into this Court of the whole of a proceeding numbered VID 904 of 2008 pending in the Federal Court of Australia, Melbourne Registry, and secondly, for the making of a declaration by this Court that:

the continuous, sustained, systematic atrocities against members of the BOSS School in India, by the Indian Govt., Police, Judiciary and Media since 2005, amount to “Genocide” and “Persecution” (which is a Crime against Humanity) – as defined by the UN Convention on the Prevention and Punishment of the Crime of Genocide 1948 and Rome Statute and Division 268 A, B and C of the Criminal Code Act 1995.

In order to understand the issues that arise for consideration today, it is necessary to record the course of events that lies behind the application I have just described. 

On 29 October 2008, proceedings were instituted in the Federal Court of Australia seeking mandamus directed, first, to the then Commissioner of the Australian Federal Police requiring the institution of criminal proceedings against persons who were said to be members of the religious group known as “Exclusive Brethren”; second, to the Commonwealth “to pressurise India” to stop what was alleged to be genocide; and third, to the Secretary of the Department of Immigration and Citizenship requiring the issue of protection visas to the applicant, Ms Desai, and her sisters as “victims of genocide, trafficking, crimes against humanity”.

The proceedings in the Federal Court of Australia came on for directions in December 2008 before Justice North.  At, or at least as a result of, that hearing the applicant and her sisters were referred to senior and junior counsel under Order 80 of the Federal Court Rules for the purpose of their taking advice about the claims that they sought to make in the Federal Court.  The applicant and her sisters received advice but, so far as the material before me shows, dispensed thereafter with the further services of counsel to whom they had been referred.

In February 2009, the applicant gave notice of motion in the Federal Court seeking declarations that activities alleged to be occurring in India constituted genocide.  That notice of motion was returned in March 2009, but, as best I understand it, no order has yet been made finally disposing of that motion.  Whether or not that is so, certainly no declaration of the kind sought by Ms Desai has been made by the Federal Court.

Ms Desai subsequently filed a further notice of motion in the Federal Court seeking the issue of mandamus directed to the Commonwealth, perhaps to others as well, requiring the issue of provisional warrants for the arrest of certain judges and officials of the Supreme Court of India and for certain judges of the Bombay High Court, as well also as to require the Commonwealth to petition the United Nations to set up an international tribunal in India and to send a peacekeeping mission to that country.  This motion appears to have been dismissed in March 2009.

Immediately following the dismissal of that motion, the applicant filed a further notice of motion seeking to reagitate the issues that were the subject of the motion that had been dismissed, but that further motion appears to have been dismissed in April.

As long ago as April 2009, directions were given for the filing of material in relation to an application which, by then, had been made by the respondents in the Federal Court proceedings seeking summary termination of the proceedings instituted by Ms Desai.  The time for compliance with those directions has now long since passed.  Despite that fact, the motion for summary termination of the proceedings has not come on for hearing.  Why that should be is not explained in the evidence.  On the face of it, a motion seeking summary termination of proceedings, which at least one side of the proceeding alleges to be urgent, would ordinarily call for prompt hearing and determination.

As I have already noted, directions having been given for the filing of material in support and in opposition to that motion, so far as the material presently before me reveals, there is no procedural step that stands between the completion of necessary interlocutory procedures and the hearing and determination of that motion for summary termination.

As was noted in the course of argument, the applicant sought in March 2009 to institute a proceeding in this Court by filing an application for an order to show cause for the grant of relief, at least generally similar to the relief, which she sought in the Federal Court proceeding.  I directed the Registrar not to issue that process without the leave of a Justice first had and obtained, and on 8 April 2009 Justice Crennan refused leave to issue the proposed process.

On 13 October 2009, the applicant instituted a proceeding in this Court seeking an order under section 40 of the Judiciary Act 1903 (Cth) removing into this Court the whole of the proceeding pending in the Federal Court of Australia. As I have already noted, by her summons of 14 October, she now asks for an order for removal and for what is described as an immediate hearing before 21 October 2009 for the grant of the declaration which I have earlier set out in these reasons.

Section 40 of the Judiciary Act 1903 (Cth) provides in subsection (1) that:

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

It is not disputed that the proceeding pending in the Federal Court of Australia is a cause involving the interpretation of the Constitution. It is unnecessary, for the purposes of this application, to identify the respect or respects in which the cause pending in the Federal Court has the characteristic just identified of involving the interpretation of the Constitution.

The respondents resist the order for removal submitting that the proceeding in the Federal Court of Australia has not proceeded to a point where it would be appropriate to order removal into this Court.  The respondents point out, and, as I understand it, it is not disputed, that there are allegations of fact made in the proceedings pending in the Federal Court which the respondents do not accept or admit.  The respondents further point out that they have sought summary termination of the proceedings pending in the Federal Court on the footing that, even accepting the factual allegations made by the applicant, the proceeding is, nonetheless, one which can be shown not to have any sufficient prospect of success to resist the order for summary termination.

The respondents further submit that the issues which it is sought to tender for determination in the Federal Court of Australia raise no issue of a kind suitable to the making of an order for removal into this Court. In particular, as I understand the argument, it was that to the extent to which the cause now pending in the Federal Court can be described as a cause involving the interpretation of the Constitution, that constitutional point is not identified with sufficient clarity and confinement to make it appropriate to remove into this Court consideration of that constitutional issue.

What then becomes apparent from the way in which both the applicant puts her case and the respondent seeks to meet it is that the central complaint of the applicant is that the proceedings which she instituted in the Federal Court of Australia have not been dealt with sufficiently promptly.  As I have already noted, a considerable period has elapsed since the respondents sought summary termination of the proceedings without that application coming on for hearing and determination.  But delay, if that be what it is, in determining the proceedings does not, in my opinion, in this case constitute sufficient reason for removal of the proceeding into this Court.

To the extent to which the applicant seeks removal of the proceeding for the purpose of the immediate grant of the declaration that I have set out at the outset of these reasons, that application is one which should not be granted.  The declaration which she seeks is one which, if it could be made at all, a question I do not stay to consider, is a declaration that could be made only after examination of the accuracy of the factual underpinnings that are sought to be placed beneath its making.

As I have already noted, the issues about those factual underpinnings have not yet been tried and determined.  The respondents do not admit or accept the facts alleged.  It would not be possible, let alone appropriate in those circumstances, to grant the declaration which is sought at the time at which the applicant seeks to have it made.  Lest there be any misunderstanding about it, I emphasise that I express no view about whether a declaration of the kind sought could be made.  On the face of it, there would appear to be matters which could be the subject of real and lively debate about that subject matter, but it is one to which I direct no immediate attention.

In my opinion, no case is made for the exercise by this Court of the power granted to it by section 40 of the Judiciary Act to make an order for removal.  The applicant seeking that order immediately, and being of the opinion I am, it is appropriate therefore not simply to dismiss the application made by the summons of 14 October, but the proceeding now pending in the Court for removal should itself stand dismissed. 

Before parting with this case it is necessary to notice that in the applicant’s originating process, her outline of argument, and in each of the affidavits filed in support of her applications, the applicant makes threats and allegations properly described as scandalous.  No court can submit to threat.  No court can permit its processes to be used for baseless and irrelevant allegations, let alone allegations of that kind which do not rise above the level of scurrilous abuse.  The documents which contain this material must be removed from the file and I will give directions accordingly.  I direct that the application for removal dated 13 October 2009, the applicant’s summary of argument dated 13 October 2009, the affidavit of Lydia Desai sworn 14 October 2009 and the affidavit of Lydia Desai sworn on 19 October 2009 each be removed from the file as scandalous. 

The application made by summons of 14 October is dismissed.  The application for removal is dismissed.

MR DONAGHUE:   I seek costs, your Honour.

HIS HONOUR:   Yes.  Is there any reason why an order for costs would not follow the event, Ms Desai?

MS DESAI:   Your Honour, it is a matter of our lives.  There is definitely – it cannot – there cannot be any costs because I do not see how there can be costs because it is literally our lives at stake.  Tomorrow, we are going to be genocided.  So definitely there cannot be any costs. 

HIS HONOUR:   Yes, thank you, Ms Desai.  Each order will be made with costs.  Adjourn the Court.

AT 10.19 AM THE MATTER WAS CONCLUDED