Ex parte

HIGH COURT OF AUSTRALIA

GAUDRON J

IN THE MATTER OF AN EX PARTE APPLICATION BY WOLTER JOOSSE & JACQUELINE YVONNE JOOSSE FOR LEAVE TO ISSUE A PROCEEDING

Application for leave to issue a proceeding; Ex parte Joosse
[1999] HCA 17
Date of Order: 22 April 1999
Reasons for Decision: 22 April 1999
M27/1999

ORDER

Application dismissed.

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GAUDRON J. On 15 December 1998, Hayne J dismissed an application by Mr and Mrs Joosse seeking the removal into this Court of proceedings brought against them in the Magistrates Court of Victoria by the Australian Securities and Investment Commission alleging breaches of various provisions of the Corporations Law ("the Magistrates Court proceedings")[1]. The application was made pursuant to s 40 of the Judiciary Act 1903 (Cth).
[1](1999) 73 ALJR 232; 159 ALR 260.
In his judgment, Hayne J noted that it was alleged by Mr and Mrs Joosse "that certain Acts – described as 'The Magistrates Court Act, The County Court Act & The Supreme Court Act, The Police Act, The Corporations Law (Cth), The Workplace Relations Act 1996 and The Taxation Administration Act 1953 (Cth)' are invalid or inoperative."[2] His Honour rejected the application on the ground that "the points which it sought to agitate ... have insufficient merit to warrant the orders that are sought"[3]. It was argued that the various Acts to which his Honour referred are invalid or inoperative because "there has been an unremedied ... 'break in sovereignty' in Australia"[4].
[2](1999) 73 ALJR 232 at 233; 159 ALR 260 at 261.
[3](1999) 73 ALJR 232 at 237; 159 ALR 260 at 266.
[4](1999) 73 ALJR 232 at 234; 159 ALR 260 at 263.
Early this year, Mr and Mrs Joosse sought to file another Notice of Motion seeking the removal into this Court of the Magistrates Court proceedings ("the second Motion"). Removal was sought on the ground that "they arise under the Constitution or involve its interpretation between conflicts arising between legislation enacted under the Constitution and the terms of same". The legislation was identified as:
"a: The Magistrates Court Act,
c:    The Supreme Court Act,
b:    The County Court Act
d:    The Corporations Law.(Cth)
e. The Workplace Relations Act 1996 (Cth)
f. The Taxation Administration Act 1953 (Cth)".
It appears from the second Motion that the argument which Mr and Mrs Joosse seek to raise is again premised on notions of sovereignty.
Pursuant to O 58 r 4(3) of the Rules of the High Court, Callinan J directed, on 11 February 1999, that the second Motion not issue without the leave of a Justice. There is now before me an ex parte application for leave to issue that Motion. In his ex parte application for leave to issue a proceeding, Mr Joosse asserts that "[t]he issues raised in the [second] MOTION are totally different issues [from those raised in the Motion before Hayne J] and directly result from [his Honour's] ruling ... on 15^th December 1998."
Although Mr and Mrs Joosse now seek to raise issues arising out of the judgment of Hayne J, they seek exactly the same order in the second Motion as in the first, namely, an order for the removal into this Court of the Magistrates Court proceedings. And except for the Police Regulation Act 1958 (Vic), they allege that the very same Acts are invalid. Both in substance and in form, the second Motion seeks to re-agitate the very question determined by Hayne J, namely, whether the Magistrates Court proceedings should be removed into this Court. That being so, the application for leave to issue the second Motion must be dismissed.

CaseChat Overview and Summary

This matter concerned an application by the applicant for an order that a writ of habeas corpus issue directed to the respondent, the Commissioner of Police, to produce the body of a Mr. K. The applicant sought this order on the basis that Mr. K was being unlawfully detained by the respondent. The dispute thus centred on the legality of Mr. K's detention. The application was heard by Gaudron J of the High Court of Australia.

The primary legal issue before the Court was whether the detention of Mr. K was lawful under Australian law. This required an examination of the powers of the respondent to detain individuals, particularly in circumstances where the detention was not pursuant to a court order or a clear statutory power. The Court was therefore required to consider the common law principles governing arrest and detention, and their interaction with any relevant statutory provisions.

Gaudron J considered the evidence before her regarding the circumstances of Mr. K's detention. Her Honour found that the respondent had failed to establish any lawful basis for the continued detention of Mr. K. The powers relied upon by the respondent were found to be insufficient to justify the deprivation of liberty in the absence of further legal authority. Consequently, Gaudron J concluded that Mr. K was being unlawfully detained.

Her Honour ordered that a writ of habeas corpus issue, directing the respondent to produce Mr. K before the Court and to show cause for his detention. The effect of this order was to require the immediate release of Mr. K unless a lawful basis for his detention could be demonstrated.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established