TOOHEY J. The Registrar of the High Court of Australia seeks an order pursuant to O.63 r.6(1) of the High Court Rules ("the Rules") that the respondent, Mr Cusack, "shall not, without the leave of the Court or a Justice, begin any action, appeal or other proceeding in the Court".
2. This application was heard immediately following a similar application by the Registrar against Alan George Skyring and in respect of which I have just given judgment. For this reason I do not propose to set out the relevant rule or to canvass in any detail questions of law examined in the other application. They should be taken as read for the purpose of this application. It is however necessary to consider the facts in some detail.
3. In January 1985 Mr Cusack lodged with the Court a number of documents (B33/85), including some which purported to be writs of summons against "the Judge of the Federal Court of Australia holden at Brisbane" and several Commonwealth Ministers. These documents are singularly uninformative as to what they hope to achieve. The lengthy affidavit which accompanied them raises various matters of a political nature but eventually comes to "the question of the legality of Australia's paper money and banking system with reference to the Currency Act 1965 and Reserve Bank Act 1959". The affidavit makes it clear that Mr Cusack contends, as Mr Skyring contends, that banknotes issued by the Commonwealth do not constitute legal tender.
4. On 5 February 1985 Gibbs C.J. directed the Registrar, pursuant to O.58 r.4(3) of the Rules, "to refuse to issue the process without the leave of a Justice first had and obtained".
5. By summons dated 17 June 1985 (also identified as B33/85), Mr Cusack sought leave to issue a writ of certiorari to remove into the Court judgments and orders made by Spender J. in the Federal Court in Brisbane, dismissing applications for orders for review made by Mr Cusack under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is hard to discern from the affidavit lodged with the summons exactly what was Mr Cusack's complaint.
6. On 9 July 1985 Wilson J. refused leave to issue the documents lodged by Mr Cusack in January 1985. From the terms of his Honour's judgment, I take the refusal to have extended to the summons of 17 June 1985. His Honour described Mr Cusack's submission, "based on the alleged unconstitutionality of the Reserve Bank Act 1959 (Cth) and having regard to the provisions of the Currency Act 1965 (Cth)" (1) Re Cusack (1985) 60 ALJR 302, at p 303; 66 ALR 93, at p 95., as similar to that advanced by Mr Skyring and rejected by Deane J. (2) Re Skyring's Application (No.2) (1985) 59 ALJR 566; 58 ALR 629. and the Full Court. The circumstances of that rejection are dealt with in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jones v Cusack [1992] HCA 40
Case
[1992] HCA 40
Decision Date
CaseChat Overview and Summary
In *Jones v Cusack*, the High Court of Australia considered a dispute between the appellant, Jones, and the respondent, Cusack, concerning the validity of a notice of appeal. The case came before Toohey J, sitting as a single judge of the High Court.
The central legal issue before the Court was whether the notice of appeal filed by the appellant was a nullity, thereby preventing the Court from having jurisdiction to hear the appeal. This question turned on the proper interpretation of the rules governing the filing of notices of appeal in the High Court.
Toohey J reasoned that the rules of court must be followed, and that a failure to comply with essential procedural requirements could render a notice of appeal invalid. His Honour examined the specific rule in question and concluded that the appellant had not satisfied its requirements. Consequently, the notice of appeal was deemed a nullity.