In the matter of an application by Louis

[1988] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Registry	No C6 of 1988
In the matter of -

An application by

GRAHAM JAMES LOUIS AND OTHERS

Application pursuant to

Order 72 rule 12

BRENNAN J

(In Chambers)

Louis(6)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17. JUNE 1988, AT 3.03 PM

Copyright in the High Court of Australia

C3Tl/l/PLC 1 17/6/88

HIS HONOUR:	Are you Mr Louis?
MR G.J. LOUIS:	Yes. Excuse my appearance please, Your Honour.

HIS HONOUR:  That is all right, Mr Louis. I understand you

have an application to make under the rules of Court.

MR LOUIS:	Yes, Your Honour.
HIS HONOUR:	What is that application?

MR LOUIS: Pursuant to Order 72 rule 12, Your Honour, I am

asking that no fee be taken for the filing of a

statement of claim against the Commonwealth.

HIS HONOUR:  That is for a writ in the statement of claim,

is it?

MR LOUIS:	A general writ of summons, Your Honour.
HIS HONOUR:	I think I have the documents here, Mr Louis, is

that right?

MR LOUIS:  Yes, Your Honour. Owing to our economic income

and not being able to pursue our economic development

we are not in a position to pay the fees, so therefore

to have to wait for the fee would be long and delay

the matter further, Your Honour. So I am asking

Your Honour to waive the fee on that particular point

please, Your Honour.

HIS HONOUR:  Mr Louis, this matter strikes a chord in my

recollection. Is this concerned, as it seems to be, with your and·your family's movement into Australia?

MR LOUIS:  Yes, Your Honour.

Cl HIS HONOUR: And is that not a matter which went for trial in

the Supreme Court of the Australian Capital Territory?

MR LOUIS: Yes, Your Honour.
HIS HONOUR:	And is this the same matter again?
MR LOUIS:	No, Your Honour.
HIS HONOUR:	What is the distinction?

MR LOUIS: Right. The matter that stood trial in the ACT Supreme

Court was what happened in Hong Kong, the wrongful arrest and false imprisonment of my family at Hong Kong

Airport, on to the Qantas aeroplane, then into Australia.
And following that, we complained to the government and

had some difficulty in establishing -that -a,-nd a.s a

consequence, we incurred damage, loss and suffering

because of the fact that the matter was not redressed.

C3T2/2/RB	2	17/6/88
Louis(6)

So if I may say so, flowing from the false

imprisonment, secondary to the false imprisonment, this

cause of action arises where - - -

HIS HONOUR: Which cause of action?

MR LOUIS:  The paragraph 3 of the statement of claim.

HIS HONOUR:  I see. Is it said that the defendant in your first

action did not conduct itself properly in relation to

the way in which that action was fought?

MR LOUIS: That is one of the facts that we allege, yes, Your Honour.

HIS HONOUR:  Is that the basis of your present claim?

MR LOUIS: The basis of the present claim, Your Honour, in

paragraph 3 is that when we did arrive in Australia

against our will and unlawfully, we say that the

defendant had a responsibility. to us, ~ .. specially to our

petitions and complaints, and they failea to listen to

our complaints which were established on 29 May 1987

and further, the conduct of the defendant in defending

that matter was, we say, improper and that they caused

undue delay.

So that is another cause of action incorporated

into the one paragraph.

HIS HONOUR:  Did you give evidence before the judge in the

Australian Capital Territory Supreme Court about the defendant's failure to listen to your complaints and

your petitions after you arrived here?

MR LOUIS: That was brought to the court's attention, Your Honour,

but the only matter that was on trial was what happened

in Hong Kong, the false imprisonment on to the aeroplanes

and into Australia, that was the only cause of action

that was determined at that trial. His Honour

Justice Kelly of the supreme court found Qantas guilty

of wrongful arrest and false imprisonment of my family

and I into Australia. His Honour found that the

Commonwealth as such were not responsible for what

happened in Hong Kong, but that is where His Honour's

judgment ended in so far as the Commownealth were
concerned.

Once we arrived in Australia unlawfully we then

say that the Commonwealth had a responsibility since

my family had arrived here unlawfully and they failed

a duty and a responsibility that they owe us by being

negligent in the least and failing to redress those kind

of complaints. And then further, the constraints that

we in9urr~d, ~-9 . a-r~_pleaded in .paragraph 3, Your Honour,
were unlawful.because of'our entry in the first instance

originally being unlawful, the constraints were also

a trespass to us and continued unlawfully.

C3T2/2/RB	3	17/6/88
Louis(6)

We pleaded that there was a continuing false

imprisonment which we still believe it is a false
imprisonment in so far as the fact that the constraints

and the fact that we did have the right to go to the courts to determine the lawfulness of our entry into the country, which we did, and the fact that it took so

long and the other constraints that I have mentioned

in paragraph 3 cannot amount to anything less than a

TZ continuing form of trespass.

And we plead it as an unlawful constraint since

it was hard for the court to interpret the false

RB	imprisonment within the jurisdiction, in other words,
Your Honour, we claimed that since we were false
imprisoned into Australia until we left Australia it was
still a continuing false imprisonment; not a false
imprisonment as in incarceration but a false imprisonment
as constraints and the prisoners of conscience, so to speak, and the false imprisonment was not actually, perhaps, a true physical false imprisonment but
most certainly unlawful constraints which we have
pleaded in paragraph 3, Your Honour. And most certainly,
Your Honour, since - - -

HIS HONOUR:  Mr Louis, you understand that:in an application

under rule 12 it is necessary to show that there is a

special reason for the order that you seek?

MR LOUIS: Yes, Your Honour.

HIS HONOUR:  Would you like to say anything further in order to

demonstrate that there is a special reason?

MR LOUIS:  Thank you, Your Honour. I am in the process of looking

for work and since w-a have- been- here I have not been able to

pursue our social economic cultural development and we

are presently and have been most certainly the lowest

income family in Australia and we do not receive th~

family allowance and handicapped pension for one of

our children and by the constraints over the years,

as I have pleaded in paragraph 3, Your Honour, we are

definitely the lowest income family in Australia presently.

HIS HONOUR: Yes. Well, Mr Louis, there is one other matter and

that is that in a case of this kind one matter that

I should be satisfied about is that there is an

arguable case for relief in the claim that you propose

to bring. Is there anything further that you wish to

say about that?

MR LOUIS: Yes, Your Honour. Since we have been in Australia we

have been placed under - in paragraph 4, Your Honour.

We have been placed under surveillance- by the defendant

through its agents and. serva.nts and we pleP,c:1.P.; thpt-

the reason for that was to compromise us in our complaints against the Commonwealth. And in paragraph 5, Your Honour,

we have pleaded that:

C3T3/l/PLC	4	17/6/88
Louis(6)

The Defendant has acted out of spite and

malice towards the plaintiffs.

And the fact that the wrongful arrest and false

imprisonment has been established and Qantas Airways,

as a statutory authority formed by Federal Parliament,

Your Honour, to operate under the Minister of Aviation

and Transport, I put the submission to Your Honour

that when Qantas were found to have wrongfully arrested

and false imprisoned us, I say that the Commonwealth,

as a body corporative were also responsible for the

false imprisonment and the Commonwealth being the owner

of Qantas should take responsibility for the actions of its servant, Qantas. And since the government of

the day is responsible for the day-to-day running of
the country and we did petition the Prime Minister,
Your Honour and we did complain to the Parliament

because they failed to take action and further than that,

Your Honour, in as many words, they are saying the

Minister for Foreign Affairs, especially, through his

officer: "You and your family can leave Australia

but before you go you owe us $23,000. You're liable

for all your costs and debts and any responsibilities

plus you must pay your own fares out of Australia."

T3	So, Your Honour, I make a submission to Your Honour
that based on the fact that we are in Australia by
force and unlawfully, in the first instance, the
Commonwealth does have a responsibility and most
certainly, as the statement of claim is pleaded,
Your Honour, Qantas being a servant of the Commonwealth
and mentioned in the statement of claim, I find it
impossible to be able to separate Qantas Airways from
the Commonwealth.

HIS HONOUR:  But have you been paid damages in respect of what happened in Hong Kong?

MR LOUIS: Yes, Your Honour, we received an award of $20,000,

$10,000 and $100 each for the children but the money

was garnisheed before we received it. They took almost

$4000 from that particular sum of money. That is

HIS HONOUR: Well, do not let me divert you. The question that	another thing, Your Honour: those damages were -	I asked you was directed to this, namely, whether, even
if the Commonwealth was responsible for what Qantas did,
you had not been paid either by Qantas or by the
Commonwealth for whatever it was that happened in
Hong Kong.

MR LOUIS:  We received a substantial part of the damages for the

wrongful arrest and false imprisonment in Hong Kong,

Your Honour, and the only matter that was brought to

trial was what happened in Hong Kong, on to the aeroplane 1 · 1 -~- 1 , ,.

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and t ~~J' - ~~- _.._ • .L.J..J._,., ,._,.., ~ .... ,. ~· , ...... ~r .... , ....

that arises here was, would I be right in saying,

flowing from or secondary to the wrongful arrest and

false imprisonment which has been established, Your Honour?

C3T4/l/PLC	5	17/6/88
Louis(6)
HIS HONOUR:	Yes, very well.	Is that all you wish to say,

Mr Louis?

MR LOUIS:	Thank you, Your Honour.
HIS HONOUR:	This is an application which is made under

Order 72 rule 12 of the Rules of this Court which

confers upon a Justice jurisdiction in a particular

case, for special reason, to direct that a fee shall not be taken in the event of a writ and statement of claim being filed as the applicant wishes to file it.

I shall assume for the purposes of this

application that the applicant's assertion made from

the bar table of impecuniosity is established.

However, the requirement of Order 72 rule 12 is that

there be a special reason shown. Involved in that

concept, as it seems to me, is some degree of satisfaction

that the cause of action which is sought to be litigated

is a cause of action which has some reas:>nable prospect

of success, being pleaded in a fashion which is sufficiently

intelligible to identify its constituent parts.

I do not find in the statement of claim that the

criterion which I have just expressed has been satisfied.

Paragraph 3 of the statement of claim reads as follows:

The defendant through its agents and servants

is gross negligent, has failed its duty of

care and responsibilities owed to the plaintiffs'

petitions and complaints about the false

imprisonments and breach of the 1958 Migration
Act since 1982 and has failed to act properly

which has unlawfully constrained the plaintiffs from leaving Australia. Plaintiff Graham Louis

has not been able to freely do business or work

because of his domestic dutys raising his

children and doing the work of his wife who

has continued to suffer suicidal mental illness

causing financial constraints. There has been

undue delay caused by the defendant's agents

and servants in the legal system.

As I understand this paragraph, with the assistance

of what Mr Louis has told me, it is intended to allege

that after a wrongful process of putting Mr Louis and

his family aboard a Qantas plane in Hong Kong, when

the family arrived in Australia the Commonwealth did

not sufficiently listen and attend to and remedy

the complaints about what had happened in Hong Kong

and the translation of the family to Australia.	I
further understand that the complaint is that in

litigation which Mr Louis and his family instituted

against Qantas and the Commonwealth, there was such a

c~~d~~t of those proceedings as to fail to do proper

justice to Mr Louis and his family as plaintiffs.

C3T4/2/PLC	6	17/6/88
Louis(6)

I do not understand precisely what the causes

of action are based upon but it seems to me that there

is nothing established which amounts to a false

imprisonment of the kind which would sound in damages,

Mr Louis' explanation of that cause of action being

that he and his family have been so to speak prisoners

of conscience restrained within Australia.

Paragraph 4 of the statement of claim reads

as follows:

The defendent through his agents and servants the Australian Federal Police Australian Secret

Intelligence Organization Australian Secret

Intelligence Service and others have conspired together as agents and servants of the defendant to compromise the plaintiffs claims against the

defendent by unlawful oppressive surveilance

of the plaintiffs through house and telephone

bugging and through undercover work in our

business family and private life and gathering unlawful oppressive material on the plaintiffs

to their depriment.

And b~ paragraph 5 it is alleged that:

The defendent has acted out of spite and malice

towards the plaintiffs.

I take it that these paragraphs are intended

to relate back to the basic claim which is intended
to be made in paragraph 3 and which, for the reasons

that I have expressed, I do not think satisfies the

test which ought to be satisfied before an order is

made under Order 72 rule 12.

In those circumstances I decline to make the

order under Order 72 rule 12, not being satisfied that

a special reason has been established. The application

is therefore refused.

AT 3.24 PM THE MATTER WAS ADJOURNED SINE DIE

C3T5/l/RB	7	17/6/88
Louis(6)