Jones v Cusack

[1992] HCATrans 201

•

IN THE HIGH COURT OF AUSTRALIA

Registry No CS of 1992

B e t w e e n

FRANK WILLIAM DUDLEY JONES

Applicant

and

PATRICK LEO CUSACK

Respondent

Notice of Motion

Application pursuant to

Order 63 rule 6 of the High

Court Rules

TOOHEY J

Cusack(S) 1 26/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 26 JUNE 1992, AT 1.43 PM

Copyright in the High Court of Australia

MR A. ROBERTSON:  I appear for the applicant in that matter,

Your Honour. (instructed by the Australian

Government Solicitor)

HIS HONOUR: Mr Cusack, you are present in person, are you?

MR P.L. CUSACK:	Yes, Your Honour.
HIS HONOUR:	Yes, Mr Robertson?
MR ROBERTSON:	If the Court pleases, the applicant moves on

notice of motion dated 9 April 1992 which is

supported by an affidavit sworn on the same date,

9 April 1992, by Frank William Dudley Jones, the

Registrar of the Court. That affidavit has 21

exhibits. If I may take the same course as before
without formally reading or tendering the exhibits,
may they be treated as the evidence on which the

applicant relies?

HIS HONOUR:	Yes.
MR ROBERTSON:	Perhaps I might in the same way take

Your Honour through the various actions that have

been brought by reference to the affidavit. this matter back to January 1985, and the first

exhibit is FJl which is matter B33 of 1985 in this

Court. There were certain documents, including

applications for writs of certiorari against

Mr Justice Spender of the Federal Court.

If I can take Your Honour to FJl, Your Honour

will see that it begins with a matter against the ju~tice of the Federal Court. The next page, the

document is addressed to the Special Minister of

State, the next to the Minister for Finance, the

next to the Treasurer and the next to the

Attorney-General of the Commonwealth.

FJ2 shows how this matter arose. Paragraph 1

refers to the dissolution of the 32nd Federal

Parliament, but towards the end of that paragraph

Your Honour will see that:

for which exercise of my political right a

"nomination deposit" of $100 was paid, under

strong protest, and subsequently forfeited to

the Crown -

Then at paragraph 7 of the same affidavit, there is

a reference, five lines up from the foot of that

page, to the money bias present in the provisions

of section 170 of the Commonwealth Electoral Act,

and then over on - - -

Cusack(5) 26/6/92

HIS HONOUR:  I am not sure that I have that. Which

paragraph is it?

MR ROBERTSON: It is paragraph 7, Your Honour.

HIS HONOUR:	Yes, I do have it, thank you.
MR ROBERTSON:	The major argument that was put, as can be seen there, was that there is a conflict between
170 and 172 of the Electoral Act and 329 and also
in conflict with the Great Charter and the 1689 Bill of Rights. That matter was agitated before
Justice Spender. In paragraph 8, if I can dwell on
that for a moment, Your Honour will see the reference to the decision of Chief Justice Griffith
in Chia Gee v Martin, and then just below that it
says:

led me to re-argue the same points of law in

my second Application -

that is in the Federal Court

with additional legal references ..... Bate's

Case of 1606 -

Then in the next sentence of the affidavit:

In that second case I not only re-argued breaches of natural justice but also raised 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, both as amended -

Over on the next page, lines 5 and 6, there are

references to section 22 of the Currency Act:

which prohibit anything but coin issued under

that Act from "pretending" to be "legal

tender".

Then the grounds of the application are set out,

which I do not need to take Your Honour through in

any detail until one gets to the page on which

paragraph 14 occurs at the bottom. It is about

three pages further on. If Your Honour were to

look at paragraph 14, Your Honour would see these

Bills of Exchange
matters: the Reserve Bank, the tender" being described there. That is all in that

affidavit I need take Your Honour to.

Your Honour will see at FJ3, and by reference

to paragraph 3 of the Registrar's affidavit, that a

direction was given on 5 February 1985 that the

Registrar refuse to issue the process without the

Cusack(5) 26/6/92

leave of a Justice first had and obtained. Then
FJ4 is the application for an order that leave to

issue the writ of certiorari to remove into the said Court the judgments of Mr Justice Spender.

That is the summons.

FJ5 is the affidavit in support of that

summons. I will not take Your Honour through it in

any detail. The question of money and legal tender

appears at paragraph 15 of that affidavit, which is

probably about the seventh or eighth page of it.

At that stage, as appears from that paragraph 15,

the applicant placed the:

money issue in subordination to my "natural

justice" grievance, it would be no less

significant in the resolution of injustices

than the latter.

The next stage of that application was exhibit FJ6,

which is the judgment of Mr Justice Wilson. That
does not appear from that exhibit, but it is

reported in (1985) 66 ALR 93. That judgment was in

fact given on the same day as the Full Court

dismissed the appeal from the judgment of

Mr Justice Deane.	Mr Justice Wilson refers to
that.

HIS HONOUR:  Do you mean appeal in Mr Skyring's application?

MR ROBERTSON:  Yes. Your Honour will see on the last page

of the judgment, line 3:

There is no reason to doubt the validity of

s 170 -

that is of the Commonwealth Electoral Act -

nor the competence of the legislature to enact

it. Section 170 is not inconsistent with

s 327. The requirement that a candidate for

election pay a nomination fee does not

interfere with the free exercise of a

political right or duty ...•. The second

decision of Mr Justice Spender to which

reference has been made relates to an

objection, based on the alleged

unconstitutionality of the Reserve Bank Act

1959 and having regard to the provisions of

the Currency Act 1965, to the efficacy of the

payment in legal tender of the nomination

fee •.... This submission is similar to that

advanced by Alan George Skyring in support of

an application for a writ of certiorari

against LP Mitchell Esq SM, which has been

heard with the present matter. In this regard

I see no reason to doubt the correctness of

Cusack(S) 4 26/6/92

the decision of Spender Jin relation to the

validity of the currency and banking system in

Australia. The validity of laws enacted by

the Commonwealth Parliament falls to be
determined by reference to the proper
construction of the Australian Constitution.

It is not open to base an argument for

invalidity by reference to alleged

inconsistencies between laws of the

Commonwealth and either Magna Carta or the

Bill of Rights.

In the matter of an application by

Alan George Skyring heard and determined by

Deane Jon 6 February 1985, His Honour said -

His Honour sets that out. Then His Honour

Justice Wilson says at line 37:

These conclusions have been accepted by the

Full Court in dismissing, on 9 July 1985, an

appeal from the decision of Deane J.

It follows that in my opinion leave to

issue the processes in question must be

refused. To allow them to proceed would be to

initiate a process that could end only in

futility and expense and inconvenience to the

parties. The decisions of Spender J were not

the subject of any appeal. Even if they were

now to be thought open to question (a thought

which I do not entertain for a moment), the

original jurisdiction of this court to

entertain them is open to serious question.

His Honour refers to Re Bowen. Your Honour, that,

in my respectful submission, is the end of the
first action brought and it ended in a judgment

against Mr Cusack on that question.

Then the next phase is shown by exhibit FJ7 which is seeking to have issued a writ against the

Attorney-General of Queensland. Your Honour will

again see on the first page of that exhibit that it bears the notation of an order by Mr Justice Wilson

on the left-hand side pursuant to Order 58

rule 4(3). The next step therefore is exhibit FJ8

which is a further lodging with the Court of a

summons seeking to issue a writ of certiorari. So

that is a distinct action, as it seems, in actions

taken in the Supreme Court of Queensland by the

Australia and New Zealand Banking Group. There

again, that has a notation on it by Justice Wilson
of 7 February 1989.

Then, Your Honour, going to exhibit FJ9, that is the affidavit actually in support of exhibit 10.

Cusack(5) 5 26/6/92

Exhibit 10 is an application for an order that leave be granted to issue the process reviewed by

Mr Justice Wilson. The affidavit in support is exhibit 9. Taking Your Honour to that exhibit,

Your Honour will see that the affidavit begins with:

The existence of patent contradictions

within the body of Australian law (in

particular, Commonwealth statute provisions)
relating to "money" -

In paragraph 3 of that affidavit, there is a reference to the currency question and in

paragraph 4, there is a reference to:

formal and definitive judicial determination

of the constitutional validity of the alleged

"Power of Sale" provisions incorporated in a

mortgage given over private property, which

provisions are seen to be in conflict with inherited provisions of Cap 8 of the Magna Carta, still in force.

Exhibit 11 is the affidavit in support of the

summons and the affidavit sworn 16 February 1989.

That is in matter CS of 1989. Both those matters

were dealt with together by Justice McHugh, which I

will come to in a moment. CS again agitates,

Your Honour will see from pages 2 and 3 of the

affidavit, the question of - it appears at the foot

of page 4 of the affidavit, the last two lines:

The central constitutional issue, which has

been characterised as "the currency question",

has in fact not been soundly or durably

resolved in previous High Court determination,

that the patent

as claimed and upheld in the Queensland demonstrating

constitutional/statutory conflict still

prevails.

Your Honour will recall that the date of the

judgment of the Full Court was 9 July 1985; that

is the judgment in the Skyringmatter. This

affidavit refers to these matters, alleges these

matters some substantial period of time after that

judgment of the Full Court. Exhibit 12,

Your Honour, is where, as I foreshadowed, matter C4

of 1989 and CS of 1989 are heard together by

Justice McHugh.

HIS HONOUR: That is the transcript you took me through

before but in relation to Mr Skyring's aspect of

it?

Cusack(S)	6	26/6/92
MR ROBERTSON:	Yes, that is so.	The early part of it is

Mr Cusack's part. I will just see whether there is

anything in particular I need to take Your Honour

to. I think I can take Your Honour straight to the

judgment which is at page 50 of the transcript,

where at point 8 of the page His Honour says:

I now deal with the application brought

by Mr Cusack in matter No C4 of 1989.

In the last four lines of that page, His Honour says:

The relief sought in this application is

substantially similar to that sought in the

matter of the application of ALAN SKYRING with

which I have just dealt. I have carefully

read the documentation filed in support of

this application -

and he sets out Mr Cusack's arguments. Then over

on page 52 at point 3 of the page, His Honour says:

The validity of the various statutory

provisions now sought to be impugned were, as

I pointed out in the application of

ALAN SKYRING, upheld by Justice Deane in a

reported decision ••... The decision of

His Honour was upheld by the Full Court of this Court on 9 July 1985.

Moreover, in RE CUSACK, (1985) 60 ALJR 302, an application by Mr Cusack for the issue

of writs of certiorari ••... was the subject of

a decision by Justice Wilson.

That is the one I have read to Your Honour. Then

at the foot of the page:

He -

that is Justice Wilson -

refused the application of Mr Cusack for the

issue of the writs of certiorari ..•.. The

challenge to the constitutional validity of

the federal statutes is precluded by the

decisions to which I have referred. But, in

any event, I am clearly of opinion for the

reasons I gave in Mr Skyring's application

that there is no substance in the attack on

these statutes.

The second ground upon which Mr Cusack

sought to rely in support of the issue of the

process was that power of sale provisions in

mortgages generally and in respect of a

Cusack(S) 7 26/6/92

mortgage with which he is concerned in

particular are in conflict with Magna Carta.

Mr Cusack candidly informed me that

mortgagee power of sale provisions are invalid because of Magna Carta and because of
authorized by statutes of the Queensland

what he referred to as "common equity." It is

sufficient to say that in so far as the

Queensland Parliament has authorized the use

of power sale provisions in mortgages, that is

a complete answer to any challenge, based on

the general provisions of Magna Carta or, on

what Mr Cusack described as, "grounds of

common equity." In the circumstances, the

only order that can be made is that leave to

issue the process be refused. I so order.

Then, Your Honour, exhibit 13 is the application

for leave to appeal from that judgment. Exhibit 14

is the affidavit in support of that application.

Paragraph 2 of that affidavit, which is on the

fourth page, refers to the following:

Insofar as the judgement in my

application C4 of 1989 was based on the

jointly heard application CS of 1989 by

A.G. Skyring, the basic ground for the appeal

is McHugh J's unwarranted adoption of a

"simplistic" interpretation of the previously

published High Court rulings, which formed the

basis of his refusal to grant the leave

sought -

and there is a reference, Your Honour, to:

apparently in complete disregard of the later

unpublished determinations -

I am not sure what that is a reference to, but I

assume it is to unpublished judgments of the Court.

Then FJ15 is the transcript of the hearing of the

appeal on 30 June 1989. On page 4 of that

transcript, Mr Cusack refers in the middle of the

page to section 16 and 22 of the Currency Act and

section 115 of the Constitution. There is a short

judgment at page 9 of the transcript, where

Justice Brennan says at point 9 of the page:

Thank you, Mr Cusack. The judgment of

Mr Justice McHugh continues to appear to us, as it appeared on the last occasion, to be clearly right.

By "the last occasion", I assume that His Honour

was referring to Mr Skyring's application for leave

Cusack(S) 8 26/6/92

to appeal from it. Then, Your Honour, that is the

end of that action. Exhibit 16 is a fresh start,

that on 29 May 1991 a notice of motion to remove

under section 40 a proceeding in the Supreme Court

of Queensland, W3423 of 1988.

Exhibit 17 is an affidavit in support. If I

could take Your Honour to paragraph 1 of that

affidavit, the deponent says:

On my initiative, constitutional matters

involved in actions -

which he describes -

have been before this honourable High Court on

two previous occasions. The same issues have

been raised before the Queensland Supreme

Court no less than fourteen times, my

submissions at those hearings having been

rejected or dismissed by at least fourteen

different justices. Judgements in those two

matters before the Queensland Supreme Court,

coupled with related actions in the Federal

Court against Mr Alan Skyring, eventually gave

rise to Plaint No 2312/90 ..... in the District

Court against me. Yet the constitutional issues involved remain unresolved, it seems

partly through inadequacy of my political and

advocacy skills and partly because of my lay

status.

The effects of these issues - known as

the 'currency and banking questions' -
continue to prevent resolution of an ongoing

dispute -

Then there is a reference on the next page, page 3,

at about point 6 to Justice Deane's judgment.

There is then a statement that there is some:

of the contradiction which existed then (and	new evidence, which proves the physical fact
exists now to a grosser extent) between different forms of money made available by the
Crown as legal tender under statute provisions
which are clearly in conflict.

There are some annexures to that affidavit touching

on similar matters which I do not need to take

Your Honour through. Exhibit 18 is the hearing of

the application for removal before the

Chief Justice on 27 June 1991. At page 7 of the

transcript, if I can take Your Honour to that, in

the middle of the page, Mr Cusack says:

Cusack(S) 26/6/92

It is fair to say, Your Honour, that the

judgments that have been delivered against

both Mr Skyring and myself in all cases have

hinged on this same matter, this currency

question. By the time this question was

raised before Mr McHugh an implication in

relation to taxation had been published in the

media at my instance which showed that there

was a legitimate tax minimization process

available through this anomaly in the currency

of the nation.

I do not need to take Your Honour through that.

Then His Honour says at the foot of the page:

Now, do I gather from what you say that the grounds for the issue of this writ of

certiorari were the grounds that Mr Skyring

had taken in the litigation that he has

brought in this Court?

Mr Cusack says:

Well, not precisely, Your Honour. The issue

which underlies the refusal of McHugh J was

the same but my argument against the Bank

initially was that if money had been borrowed,

as they had alleged, then I had the right to

make the payment in a manner of my choosing

which was provided for within the law, namely,

constitutional gold coin of which I have one

here in case you have not yet seen one.

At page 13 of the transcript in the middle of the

page, there is a reference to a new argument to do

with section Sl(iv) of the Constitution.

His Honour at point 5 of the page says:

You are asserting that it should be

construed -

that is Sl(iv) -

as a prohibition against borrowing on the

public credit of the Commonwealth?

Mr Cusack says:

I do not come prepared to give full

documentary evidence of that argument this

morning, Your Honour, but I believe that is

the argument which ought to be put on removal

of this issue.

Then Mr Cusack says:

Cusack(S) 10 26/6/92

Now, that is the new issue which has not been raised before.

Then at the foot of page 15, Mr Cusack says:

This issue, Your Honour, will not go away. As Mr Skyring has said in his own, I

say in my way:  no matter how the Court

attempts to avoid this issue, as it has been

avoided on many, many occasions previously

when raised by either Mr Skyring or myself,

the issue will not go away.

Then His Honour gives judgment at page 17, about

point 6. His Honour recites various facts and then

over on page 18 in the judgment, at point 3 of the

page, His Honour says:

Mr Cusack sought to raise, by that writ,

the argument he seeks to raise in the petition

said to be pending in the Supreme Court of

Queensland. That argument is, as Mr Cusack

frankly concedes, the currency question which

Mr Skyring has raised on so many occasions in

this court and which has been rejected by this

court. In addition, Mr Cusack seeks to raise

what he describes as a question of

interpretation of section Sl(iv) of the

Constitution relating to borrowing on the

public credit of the Commonwealth. He

contends that, on its true construction, the

Constitution prohibits borrowing on the public

credit of the Commonwealth.	The argument is
plainly untenable.

Furthermore, I am unable to see how the interpretation of section Sl(iv) is relevant

to the proceedings between the Bank and

Mr Cusack. It follows that the so-called

constitutional questions are without substance

and that the application for removal must be

refused.

I just remind Your Honour that, if I have taken Your Honour through that too quickly, Sl(iv) is a power to make laws with respect to borrowing money on the public credit of the Commonwealth.

Exhibit 19 is the notice of motion seeking leave to

appeal from the judgment that I have just taken Your Honour to. Exhibit 20 is the affidavit in

support, which I do not need to take Your Honour

through. There is a notice of appeal annexed to

the affidavit. Paragraph 2 of the affidavit refers
to the currency question, and paragraph 3 refers to

the public credit or banking question~ Paragraph 3

refers to what constitutes the public credit of the

Commonwealth. It refers to the proposition:

Cusack(S) 11 26/6/92

(i) That all new credit (and debit) appearing

at first instance within the banking

system ..•.. is part of the "Public Credit of

the Commonwealth";

(ii) That no valuable consideration moves from

a bank in the "bank lending" process

associated with mortgages; and

(iii) That accounting procedures of banks are

fraudulent ..... owned by members of the Public;

(iv) That the claim made in writing on the
faces of Australian Notes, that they are

"legal tender", cannot be constitutionally

valid;

(v) That a legal tender of money - as provided

in the Currency Act - may not be refused by a

bank in payment of an (alleged)

debt ..... mortgage into question; and

(vi) That all existing forms of "money" are

not interconvertible at their face values (as

presumed) when used in transactions to

exchange real assets between people.

Then exhibit 21 is the transcript of the hearing

before the Full Court of that application. At

page 2, point 7 of the page, Justice Brennan says:

Very well. Yes. Now, are we dealing with the

same question as we have just been dealing

with, with Mr Skyring?

Mr-Cusack says:

Not in - no. That question is involved,

Your Honour, but it is not involved alone.

There is a much deeper issue which extends

into the banking area and involves a separate

area of the Constitution. Insofar as you have
dismissed that previous application, I will

remake the points which are made therein, but
on a basis which involves the plain meaning

rule and the wording of section 115, which I

believe has not been addressed by any of

Mr Skyring's applications sufficiently or by

the Court's hearing on appeal of that matter.

Justice Brennan says:

What is the proposition that you wish to have removed into this Court for hearing and

determination -

On the next page at point 5, Justice Brennan says:

Cusack(S) 12 26/6/92

Why should this Court not leave that matter to

be determined by the Full Court of the Supreme

Court of Queensland?

Mr Cusack says:

Because, Your Honour, there is a

constitutional basis on which the banking

fraud issue needs to be determined.

Then at the foot of that page 3, Mr Cusack says:

the banking question is the essential
question, the question of fraud on a

constitutional basis.

His Honour then says at the top of the next page:

can you identify or express, as briefly as you
can, what this banking question is?

There is a reference there to credit. Towards the

foot of the page, about point 8 on page 4,

Mr Cusack says:

Following on from a full understanding of

credit, there arises the question of ownership

of credit by a bank which has induced me to

enter into an agreement known as a mortgage.

The implication within that document, on its

face, is that the bank is properly entitled to

ownership of credit. And this is related to

the Constitution, in section 51(iv) of the

Constitution, which must be read in its

entirety.

That argument is developed. Justice Brennan asks

·at the foot of page 5:

Mr Cusack, I think we understand the nature of

wishing to attack the validity of the Banking the problem that you wish to agitate. Are you Act or the validity of its administration?

Then at point 5 on page 6, Justice Brennan says:

Now, the next question is this: why should

not that point, whatever it may be and however

you wish to develop it, why should it not be

left for determination by the Supreme Court of

Queensland?

Then there is a reference to whether or not the

High Court has exclusive jurisdiction in relation

to constitutional questions. That is discussed on

page 7. Then on page 8 at point 5, Justice Brennan

says:

Cusack(5) 13 26/6/92

Well, let it be assumed that if there is some

constitutional challenge that you wish to

raise against the validity of the Banking Act,
or the operation of the Banking Act, which is

material to the case in which you are

involved - and that is a big

qualification ..... then, the question can be

determined in the course of that litigation

wherever it is now pending, and that it is not

necessary to remove some of that litigation

into this Court so that this Court can

determine only part of the cause of action.

Mr Cusack says at the foot of page 8 in the last

paragraph:

Both the lower courts and this Court

consistently in all applications by Mr Skyring

and myself have attempted to uphold the

proposition that there is no inconsistencies
between two federal Acts. Yet the facts which

have been presented in all the jurisdictions

we have appeared in demonstrate a patent

contradiction which even the simplest child

can comprehend, namely, that Australia's legal

tender gold coins are not exchangeable with

Australia's legal tender paper money. Then towards the end of that page, there is a

reference to section 115 of the Constitution and to

section 36(1) of the Reserve Bank Act and
section 16 of the Currency Act. Justice McHugh

says:

That is your whole trouble, 115 has got

nothing to do with - - -

Then on page 10, the application was refused at

about point 8 of the page. That is the evidence on

which the applicant wishes to rely, Your Honour.

were to identify the judgments and the different There again, in this case it might be useful if I	applications by reference to the affidavit of the
Registrar, Your Honour.

HIS HONOUR:  Yes, thank you.

MR ROBERTSON: Against paragraph 2 - that is the first

application - that was B33 of 1985 - that phase

ended with the judgment of Mr Justice Wilson,

referred to in paragraph 5. That is the judgment

at FJ6. Then the second proceedings were brought,

referred to in paragraph 6, and the third in

paragraph 8, and the fourth in paragraph 14. Those

are, in my submission, the quite separate

proceedings, leaving aside the appeals and so on

brought within them.

Cusack(S) 14 26/6/92

If I can identify for Your Honour the

judgments to which I referred, there is the one I

have mentioned of Mr Justice Wilson referred to in paragraph 5 - that is FJ6. The second judgment is

referred to in paragraph 11; that is the judgment

of Justice McHugh at FJ12. The third judgment is

in paragraph 13 - that is FJ15 - that is the Full

Court rejecting an application for leave to appeal

from Justice McHugh. Then in paragraph 15, there

is the judgment of the Chief Justice, and in

paragraph 17 is the judgment of the Full Court that

I have just taken Your Honour to. So there are

five judgments in Mr Cusack's matters.

Of course, the applicant relies on the fact

that there were judgments on the currency question

in the Skyringmatter. We do not submit, and we

would reject the proposition, that one looks at a

particular litigant in isolation to see whether

that particular litigant in his own applications

has had a judgment against him. What one must look

at is the question that he seeks to raise and the

authority against the point at the time he seeks to

raise it.

As I indicated to Your Honour, in the other

matter the judgment of Justice Deane was

6 February 1985 and the judgment of the Full Court was 9 July 1985, which therefore only exempts what

I have identified as the first action; that is the

one referred to in paragraphs 1 to 5 of the

affidavit of the Registrar. Everything that

happened subsequently has to be viewed, in my

submission, against the background of the judgment

of the Full Court on 9 July 1985, which was of
course some three years before what I have

described as the second set of actions identified

in paragraph 6 of the Registrar's affidavit were

initiated.

So here again, Your Honour, in the applicant's

submission, having regard to the factors that I

earlier identified, that is the nature of the

orders sought and the grounds upon which the orders

were sought and the relitigation of the same point,

then it is the applicant's submission that the

grounds in Order 63 rule 6(1) are sufficiently made

out both as to frequency and as to initiating,

without reasonable ground, vexatious legal
proceedings.

Of course, by comparison in a purely numerical sense with Mr Skyring's series of applications,

there are far fewer that have been brought by

Mr Cusack, but nevertheless the applicant would

submit that having regard in part to the context

provided by Mr Skyring's applications to which I

Cusack(5) 15 26/6/92

have referred, and in particular the judgments,

that I have referred to, that the grounds

that the quantity is sufficient and the quality of matters

in rule 6 are established, in my submission.

HIS HONOUR:  I canvassed with you during Mr Skyring's

application the question of what is meant by

"instituting proceedings", with particular

reference to Order 58 rule 4, I think it is.	Does
that have application to any of the four applications which you enumerated a moment ago?

MR ROBERTSON:  Not as I have counted them, Your Honour,

because I have not counted as contributing to the

four the internal processes in each one. So in

other words, I have looked merely at how it started

and if it ended up, for example, in a judgment of

the Full Court, I have treated that as all one.

HIS HONOUR:  But take the case of a process sought to be

issued, referred by the Registrar to a Justice of
the Court who in turn directed that it not be

issued without the leave of the Justice; then

there is an application for leave and that

application is refused. Have you counted that,

rightly or wrongly, as the institution of a

proceeding?

MR ROBERTSON:  I have taken the first step as the

institution of the proceeding, but I do not think

there is any case where all that happened was that
there was an attempt to institute proceedings which

failed because of an Order 58 direction. So in

other words, all of them continued on from there by

virtue of an application for leave to issue

notwithstanding that direction.

HIS HONOUR: Although it may be that technically, given the

result in the end, the application had not been

instituted.

MR ROBERTSON:  That would be so, but the submission would be

that the application for leave to institute the

proceedings would itself be the institution of a

proceeding.

HIS HONOUR: Yes, I understand; thank you.

MR ROBERTSON: Those are the matters, Your Honour. Perhaps

I will deal with, by way of reply if I may, any

argument that I have not touched on that

Mr Cusack - - -

HIS HONOUR:  There were authorities that you canvassed in the course of Mr Skyring's application. Mr Cusack,

I think, was present in Court, but perhaps that

Cusack(5) 16 26/6/92

should not be treated as sufficient. But those

matters could perhaps await anything said by

Mr Cusack by way of response, although I would take

up with you again the question I raised in

Mr Skyring's application of the source of authority

for the rule. You could perhaps briefly put on

record your submissions in that regard.

MR ROBERTSON:  Yes, I should, Your Honour. The source of

authority for the rule, in my submission, is the

Judiciary Act 1903, section 86, which empowers a

majority of the Justices to make rules. The

opening words of section 86 refer to the extent of the rule-making power as being in one aspect rules

as relate to:

the practice or procedure of the High Court -

that is at its widest, and then:

in particular for the following matters, that

is to say -

and there are various specific matters, and then

one gets to paragraph (h) which is:

Generally regulating all matters of practice

and procedure in the High Court.

I referred in the other matter to the decision of

the Full Court of this Court in the notice of

motion brought by Mrs Bientenu against the then

Crown Solicitor, Mr Hutchinson.

HIS HONOUR:  Does Mr Cusack have a copy of that judgment?

MR ROBERTSON: Yes, I think so, Your Honour.

MR CUSACK:	Yes, thank you.
MR ROBERTSON: Copies were provided. And also I mentioned,

although I might take Your Honour to it briefly,

that the House of Lords when the Vernazza matter
got to that House had, although on a different

aspect, looking at the question of retrospectivity

or otherwise of an amendment to the relevant

section of the English Act, had characterized the

power to declare a litigant vexatious as a
procedural power by virtue of, in my submission,
the - I am not sure whether Your Honour handed back

the earlier copy.

HIS HONOUR:	I think I probably did.
MR ROBERTSON:	It is reported in (1960) AC, it begins at

965, Attorney-General v Vernazza, and then I have

taken Your Honour sufficiently to the facts of the

Cusack(S) 17 26/6/92

Court of Appeal level so I do not need to go

through the facts. But could I take Your Honour to

page 975 where the characterization of the power is

touched on in that speech. At the middle of the page just before the paragraph that begins "Upon

the second question", some five lines up from

there, His Lordship says:

It would, I think, be wrong to say that a man

was deprived of a vested or substantive right,

if it was still left open to him to prosecute

any claim which was not an abuse of process
and for which there was a prima facie case.

And to a similar effect, if I can take Your Honour over the page to page 976, there is a reference to "Lord Keith of Avonholm" who concurred, with the

speech; "Lord Reid" concurred. Lord Denning

touched on the same question at page 977. I will

start at the beginning of a paragraph - and, of

course, the House of Lords overturned the Court of

Appeal on this aspect. The Court of Appeal said it

was an attempt to alter substantive rights,

retrospectively, and the House of Lords said the

opposite. His Lordship says:

The Court of Appeal seem to have thought

that the new Act affects Mr Vernazza's

substantive right to carry on his pending

proceedings: and that it ought not to be

given a retrospective operation.	I cannot, I
am afraid, share this view.	The new Act does

not prevent Mr Vernazza from continuing

proceedings which it is proper for him to

carry on. It only prevents him from

continuing proceedings which are an abuse of

the process of the court. If the proceedings

are not an abuse and he has prima facie

grounds for them, then he will be given leave

to continue them. This is no interference

with a substantive right.

Then His Honour refers to the courts of England

having "inherent power" and so on. Lord Morris, I

do not think says anything on that point. He

approached the matter in rather a different way and

I do not think he said anything on that point. So,

those are the fuller references to which I would

take Your Honour. If the Court pleases.

HIS HONOUR:  Thank you, Mr Robertson. Mr Cusack, could I

begin by making the two points that I made to

Mr Skyring at the outset, the first being that your

notice of motion presently before the Court be
struck out. It is really superfluous, because if
the application fails, you do not need your notice

of motion, and if it succeeds, your notice of

Cusack(S) 18 26/6/92

motion does not do you any good anyhow.	So I think
we can put that to one side.

The second matter is that, as I said to

Mr Skyring, this is not the venue for canvassing

those questions which have come before the Court on

so many occasions. You must direct your attention

to the operation of the rule under which this

application is brought.

MR CUSACK:  Thank you, Your Honour. Your Honour has read my

affidavit and exhibits, I take it?

HIS HONOUR:	That raises a question, I suppose, Mr
MR CUSACK:	If not, I will read my affidavit
HIS HONOUR:	No, there is no need for you to read it aloud.
MR CUSACK:	- - - because it contains, essentially, my

argument.

HIS HONOUR:  Just a moment. I am not sure what the status

of this document is.

MR CUSACK:  It has been filed and served from my point of

view, Your Honour.	I have a postal receipt of its
having been - - -

HIS HONOUR: That is not the ground of my concern. Is it

filed in support of your motion or in answer to the

motion by Mr Jones or what?

MR CUSACK:  If I explain just very briefly, Your Honour, the

affidavit was prepared long after my notice of

motion was filed and it could be taken to have been

in support of my notice of motion, although not

being a legal person I am not consciously

restricting it to that function. It does contain

much which could be regarded as argument -

HIS HONOUR:  It does, indeed, at a quick glance and much

that seems to infringe the -

MR CUSACK:  The premise that you set, Your Honour.

HIS HONOUR: That is right, yes, the rule that I suggested

must govern these proceedings. Just one moment.

Mr Robertson, do you want to say anything about

this affidavit?

MR ROBERTSON:  No, Your Honour, I have no objection to its

being "read" by Mr Cusack. I think it was served

at the beginning of the week in fact on my

instructing solicitor, but we do not take any point

about that. And so far as it shows what

Mr Cusack's attitude has been to the various pieces

Cusack(S) 19 26/6/92

of litigation that he has commenced, it would seem

to be relevant, in my submission, to the

Registrar's application - - -

HIS HONOUR:  Did you say relevant or irrelevant?

MR ROBERTSON: Relevant, the former, yes, relevant to the

Registrar's notice of motion, whatever its

relevance might have been to Mr Cusack's. And in

fact there are a number of paragraphs to which

perhaps in reply I would be minded to take

Your Honour, in terms of showing that so far as

Mr Cusack is concerned, the currency question is

still unresolved, if that is a relevant

consideration.

HIS HONOUR:  All right, thank you. I will receive

Mr Cusack's affidavit of 7 June and the exhibits

thereto as an affidavit filed in answer to the

present application. I do not require you to read

either the affidavit at length or individual

paragraphs so much, Mr Cusack, as to tell me or

point to a particular paragraph upon which you rely

if you do rely upon a particular paragraph and the

purpose for which you seek to use it.

MR CUSACK: Before I do that, Your Honour, I did have in

mind, since mention is made throughout all of the

discussions, in fact all of the issues which

learned counsel has brought up, refer to what is

called the currency question, I wondered whether

that ought not to be physically demonstrated.

HIS HONOUR:  I am not sure what you mean by physically

demonstrated, but if you are asking me to look

at - - -

MR CUSAC~:  In the history of all of the actions in both the

supreme court which led to the High Court, and in

the High Court itself, the treatment which the

currency question has been given has been

hypothetical and I have brought - - -

HIS HONOUR:  I think it is a bit late in the day for me to

receive in evidence a $100 note or a gold coin,

Mr Cusack.

MR CUSACK:  I was seeking to tender evidence. I would place

them on the table and ask that they be considered

exhibits to my affidavit, Your Honour. They are

discussed in the affidavit.

HIS HONOUR:	I am not prepared to receive them as exhibits to your affidavit.
MR CUSACK:	Your Honour, in the proceedings which have caused the injustices which bring me to the Court

Cusack(S) 20 26/6/92

in the first instance, the presentation of coin and

notes to people has created an absolute conflict

with the legal process. I think I need to draw

your attention in my papers to the fact that there

is currently a matter I am seeking to appeal in the

supreme court which arises from an action by a

court in response to presentation of gold coin to

the court itself.

HIS HONOUR:  So be it. In what way does that relate to this

application. What has been put against you is that

you have instituted, frequently and without

reasonable grounds, vexatious legal proceedings.

Now, the proceedings that you have instituted,

leaving for a moment to one side what "instituted"

means, are in the record before me. Whether they
are frequent and whether they are without
reasonable ground and whether they constitute

vexatious legal proceedings are matters that I will

have to determine in due course, in the light of

the material that I have.

MR CUSACK:	I should address myself to those points specifically in the rule, Your Honour?
HIS HONOUR:	Yes, you should, thank you.

MR CUSACK: Frequently, the Australian rule is quite

different from the English rule which has the

connotations of persistence and habituation. I

believe that there needs to be some balance in the

assessment of whether frequency alone is sufficient

to constitute any element of vexation, or even to

point in the direction of vexation.

On the issue of vexation itself, Your Honour,

reading through the cases researched by the other
side and presented to us yesterday, which I have
had the opportunity to read, it is very clear that

the two elements which constitute vexation are the

mental anguish of being taken into Court - I think

this issue is recognized by several of the

judgments where they say the mere issuing of the

process is vexatious to the opposing party. I

think we must look beyond that sort of simplistic

notion of the worry one feels when one is sued, and

on that same point I would note that the action

against me by the ANZ Bank which brought me into

several of my actions is viciously vexatious in my

view.

HIS HONOUR:  I think what is being put against you,

Mr Cusack, essentially is this: that·it is

vexatious to persist in bringing before the Court

questions which have been determined.

Cusack(S) 21 26/6/92

MR CUSACK:  Yes, those points I am making are too

simplistic, Your Honour, but I did want to make

them.

HIS HONOUR:  It is not that they are simplistic, but I just

want to put to you what I understand to be the case against you, not that you have acted maliciously or

that you are seeking, as it were, to harass

somebody in the way that some of the cases might

suggest, but simply that you persist in bringing to
the Court or seeking to bring to the Court for
resolution questions which have been resolved over

a period of some years, something like seven years.

MR CUSACK: 

Yes, Your Honour, the issue of vexation,

studying the cases and other cases which are not
included in there but which are referred to in
those summaries or those reports, suggests that the

key to vexation in this issue arises from the

failure to overturn Deane at first instance. That

is where the issue of vexation arises.

HIS HONOUR: 

That is one way of putting it, but -

MR CUSACK: 

I think it is the only way to put it,

Your Honour, the legal - - -

HIS HONOUR:  Let me suggest another way of putting it is

that Justice Deane, having essentially resolved the

question and that decision having been taken

unsuccessfully on appeal, and other judges or other

justices of this Court having, from time to time,

expressed agreement with Justice Deane's decision

in the course of dealing with your applications and

Mr Skyring's, that it has become vexatious on your

part to continue to seek to air those questions

before the Court. Now, I do not invite you to

agree with that for a moment, but that is, I think,

the case against you.

MR CUSACK:  Thank you, Your Honour. Your Honour, let me

suggest that I am prepared to accept that the

vexation arises because of repeated referrals to

Deane's judgment. The presumption from the legal

profession side, as against the engineering view of

this status quo, being that Deane's judgment - - -

HIS HONOUR: Justice Deane, if you will, please.

MR CUSACK:  I am sorry, Justice Deane in his judgment - I am

trying to recall the words you used, Your Honour -

decided the issue. Now, I need to state what Deane

said because what Deane said is very, very few

words and if those few words do in fact do what you

say they do, then I have no argument and I will

leave this room and be declared vexatious.

Cusack(S) 22 26/6/92

HIS HONOUR:  In a sense it does not matter whether they do

or not. The point is that the court before whom

this question has come from time to time have

clearly proceeded on the assumption that

Justice Deane has decided, adversely to you, the

questions which you sought to raise before him.

MR CUSACK:	I must disagree, Your Honour.
HIS HONOUR:	I am not sitting as a court of appeal, either

from Justice Deane or from any other justices.

MR CUSACK:  No, no, I am not trying to appeal Deane's

judgment here, all I am defending myself against is

the accusation of vexation, and in order to defend

myself against the accusation, I must give my view

of how I perceive Justice Deane's words in his

judgment of that case.

HIS HONOUR:  It does not really matter how you perceive them

so much as the way in which they have been treated

by the Court in the various applications that have

followed.

MR CUSACK:  And the possibility, Your Honour, that error is

present in all of those judgments, the possibility

that error is present.

HIS HONOUR:  That is a possibility to which you refer, but I

must take the record for what it says, Mr Cusack.

As I say, not to do that is to simply invite me to

sit on appeal or to sit as a judge at first

instance to deal with these matters afresh, which

is not my role at all.

MR CUSACK:  No, I understand that, Your Honour. In order to

defend myself against the accusation I need to give

. my perception of the actions from the other side - the Court's actions against me if I would.

HIS HONOUR:  Yes, all right.

MR CUSACK:  You have given me the Court's perception of its

actions against me. I need to give the reverse

picture of that in order to determine which, if

either, is completely or utterly incorrect and

groundless.	Now, it has been said that I am
groundless, I have no reasonable ground.	I am

saying that the High Court has no reasonable ground

for what it has done. Now, I am not saying the

Court is being vexatious in saying that, but it is

a situation where there must be complete frankness

on both sides as to how the perception of vexation

arises and why these issues have not gone away as

the Court would wish them to.

Cusack(S) 23 26/6/92

In my affidavit, Your Honour, I use a phrase - I repeat Deane's phrase against himself.

Justice Deane says, "there is no substance in that

argument". Now, I need to look at that, this is

tantamount to a tautologous - - -

HIS HONOUR:	You do not really.
MR CUSACK:	No, Your Honour, I understand -
HIS HONOUR:	Just let me interrupt you, you seem to be

missing the point. Justice Deane said that there

was no substance in your argument and he went on to

give reasons for reaching that conclusion. Now,

that is a matter that you sought to canvass, both

by way of appeal and by way of fresh applications.

Each time you sought to do so, either a single

justice of the Court, or a Full Bench where an

appeal has been involved, has affirmed what

Justice Deane said, essentially.

Now, that must be your starting point not

because you have to agree with what the Court

concluded, but you do have to accept the fact that
within the judicial system and the appellate system

of this country, the High Court, which is the final

Court of Appeal, has made certain decisions which

bear upon this matter.	Now, that must be your
starting point.

MR CUSACK:	Is it the point actually here, Your Honour, that there is a form of absolute authority within the
judicial system which cannot be appealed, because
that appears to be what is being proposed.
HIS HONOUR:	The whole system provides for appeals.
MR CUSACK:	But how does a layman, without legal aid or

counsel, appeal against a judgment of a Full Court

which is deemed to be in error?

HIS HONOUR:  You say it is deemed to be in error, but the

system provides for rights of appeal. In the

ordinary course litigation begins somewhere down

the line and either in a Supreme Court or a Federal

Court or a District Court or before a magistrate

and it finds its way up through a series of

appellate processes until you finally reach the

High Court where there has to be an end to

litigation. Your litigation has begun in this

Court.

MR CUSACK:  Your Honour, I am in a vicious circle between

the High Court and the Supreme Court of Queensland;

witness my pending appeal in the Supreme Court.

Cusack(S) 24 26/6/92

HIS HONOUR:  I am not concerned with the Supreme Court of

Queensland, Mr Cusack. The application that is brought against you is brought by reason of the proceedings that you have launched in this Court,

and that is all we are concerned with.

MR CUSACK:  Yes, Your Honour, and reasonableness of grounds

is a key issue. I am not trying to dispute the

frequency. I may as well just touch very briefly

on the point you raised about whether proceedings

have in fact been instituted. I believe under

Order 58 rule 4(3), I think it is, "process" not "issue" are the words which are contained within

that rule. I would submit, Your Honour, that the

meaning of the wording "proceedings" in Order 63

rule 6, proceedings cannot commence unless a

process has been issued, and in fact the actions
which the Court has taken to prevent the issue of

process sought to be issued by myself, as in

Mr Skyring's case, constitutes a barrier to the

initiation of proceedings. Every attempt which has

been made - - -

HIS HONOUR: That may be right; that is a matter that I

have to think about.

MR CUSACK:	I do wish to submit that to you as a very strong point from my point of view, Your Honour, that what
appears to have been an element of the vexation on
our side is that there is a frustration in that the barrier that is presently before us is so effective that it creates a form of authority within the
Court for which there is no legal or moral basis.
I characterized it as an absolute authority and I
did touch on that in my affidavit, Your Honour. It
is related to the concept of no substance, and it
is·related to the idea of a vicious circle which I
was about to touch on in relation to the fact that my appeal in the Supreme Sourt is futile if there
is no means by which Justice Deane's original judgment can be challenged within the context of
that appeal, and every effort to address that
judgment reaches the same - - -

HIS HONOUR: There are means and it was challenged. That is

what you seem to be ignoring, that there are means

by which it could be challenged and it was

challenged. Justice Deane's judgment is no more

immune from appeal than any other decision that a

single justice of this Court gives.

MR CUSACK:  Your Honour, let me show you the nature of the

catch 22 that this hang-up creates. The bank,

which is attempting to take my matrimonial home

from my family and myself, has refused to accept

gold coin at its face value when tendered in the

presence of a witness. The refusal of a legal

Cusack(5) 25 26/6/92

tender comes up. Now, the issue of gold coin and

paper money is vitally involved in my appeal, the

refusal of a bank to accept that coin is involved

and we have no judicial determination of whether I

am entitled to make a distinction between paper

money and gold coin which I require the courts to

do. In order to defend my property, while standing

on a valid statute of the Commonwealth, namely, the

Currency Act, I receive rebuff from a commercial

institution. In that rebuff they hold up pieces of

paper and wave them under my nose and say, "Offer

us this, Mr Cusack, and we will listen to you".	I
say, "On what Act are you standing?" They say,
"The Reserve Bank Act", Your Honour.

Now, the bank and I are standing face to face, toe to toe, chin to chin, nose to nose, in a

face-off situation over my property. They are
standing on the Reserve Bank Act, I am standing on

the Currency Act. The Court holds both Acts to be

valid. Now, so long as those two Acts are held to

be valid, Your Honour, and so long as I confront

the ANZ Bank with this representation of

Her Majesty Elizabeth II on legal tender currency

of this nation, I will not be dispossessed of my

property. The bank will not be paid because it

refuses to accept - it has, it is on record as

refusing to accept that form of money.

Your Honour, I find this not merely frustrating,

and even so I have no animus towards the bank

because I believe this issue arises from a more

deep seated root.

Now, in relation to this absolute authority - I am a father, Your Honour, I have five children, I

understand what authority is and I know how it can

be abused: my own children have taught me that.

For authority to not be exercised in an absolute

manner, reasons have at least to be available to

back a decision made by an authority. I speak of a

presiding authority having the power to frivolously

stall any argument by making an assertion of

opinion that the discussion must end, and refusing

to give reasons for that stands upon a tautology

which is a self-referential statement which cannot

be challenged. If I tell my child, "No, you are

not going to that movie because of the sexual

perversion it contains", I do not need to explain

to the child why, but I have the reason and I can

explain it to the child why the child must not go

to that movie.

Now, a judge can say to me, "Mr Cusack, you

cannot argue this point about gold coin", but up to

this point in time, every bench which has spoken on

the issue of the currency question has used - let

me count them, Your Honour - 33 words, key words,

Cusack(S) 26 26/6/92

out of Justice Deane's judgment. He has come to a
conclusion, and then there is the substance of the
conclusion that there is no substance in

Mr Skyring's argument. Nowhere in any of those

judgments is there what could be characterized as a

premise or an argument to support the conclusion.

It is as though the father is saying to the child,

"You cannot go to that movie but I don't want to

tell you why".

Now, I can understand reluctance on the part

of judiciary to explain why in this particular

case, but I cannot accept that a reason,

unpublished, can be withheld from me and used as a
means of preventing me from attacking that

judgment.

HIS HONOUR:  I am not sure what you mean by "unpublished",

Mr Cusack. Everything that has been said in any of your applications so far as I have been aware has been on record.

MR CUSACK:  I am not saying that the statements are not published, Your Honour; I draw a very clear

distinction between a naked conclusion of

disagreement and the reasons why that disagreement

arises.

HIS HONOUR: All right, I understand your argument that the

conclusion reached by Justice Deane was not, in

your mind, adequately supported by reasons. All

right, now, where do we go from there?

MR CUSACK:  Now, not only not supported, Your Honour, but no

attempt has been made to rebut physical evidence
presented, factual matters stated, and I would

bring the key factual matter here with me today,

Your Honour, that fact has never been rebutted.

The fact of contradiction which is going to arise

again in my Supreme Court appeal, which I must

again address at that level, has never been

have heard that question or the challenges to the	addressed or rebutted by any of the benches which
question.

HIS HONOUR:  I understand what you are saying. Now, let us

get on if we can, please.

MR CUSACK:  Your Honour, I would be slightly repeating

myself but I believe the basis of that stance is

self-referential and tautologous and as such has no

more authority than the prestige or title of the

people making the statement. The prestige and

title of the person making the statement is not

sufficient authority to support an argument,

particularly when that authority continues to fail

Cusack(S) 27 26/6/92

to disclose the premises and reasoning on which the

naked conclusion is based.

HIS HONOUR:  Can I take it that that, essentially, is your

argument against the application, that the

proceedings that you have instituted cannot be said

to have been instituted without reasonable ground

or to be vexatious because, from your point of

view, the initial decision of Justice Deane did not carry with it the detailed reasoning that you would

like it to have carried?

MR CUSACK:	Yes, Your Honour, let me -
HIS HONOUR:	I do need illustration of that.
MR CUSACK:	- - - agree with what the Full Court said in

response. They said, I believe, let me quote it.

After reciting the judgment of Justice Deane, they are not persuaded that the judgment contains any

errors. Now, Your Honour, a tautologous statement

cannot possibly contain an error.

HIS HONOUR:  I understand that argument and I will take it

into account when I am dealing with this matter.

MR CUSACK:  So the substance of the High Court's upholding

is a tautologous reference to the fact that a

tautology contains no errors. Now, that is hardly

the substantial opposition to the material facts

which are used repeatedly as evidence of a

contradiction between a pair of statutes which deny

my rights and the rights of the ANZ Bank and

absolutely prevent the resolution of the rights of

the parties in that dispute.

HIS HONOUR:	I get the gist of your argument, Mr Cusack.
MR CUSACK:	I am saying, Your Honour, that there is no

substance to the argument that there is no
substance to the argument.	Now, that is a
tautologous statement.

HIS HONOUR: All right, I understand that. I do not think

you have to keep saying it and as I said, that is a

matter that I will take into account, by which I
mean that I will take your argument into account

when I am considering. Whether that is a relevant

consideration is something that I will have to

determine.

MR CUSACK:  Yes. Let me just check my notes, Your Honour.

I think we have dealt sufficiently with objectives

and purposes. The means adopted, I believe I have

made the point that process never did issue.

HIS HONOUR:  Yes, I understand that point.

Cusack(S) 28 26/6/92

MR CUSACK: Other steps have been legitimate steps in an

attempt to appeal in a situation which is, quite

honestly, I think it would be agreed, unique, where

both an organ of the Crown, such as the Queensland

Supreme Court, would refuse legal tender and where

a banking organization claiming thousands of

dollars from me refuses to accept gold coin at face

value, I think these are certainly unique. I have

characterized them previously as historic events

and I believe they will be so recognized in due

course.

The means adopted, the form in which the

actions were taken, has at times been

unconventional and I make that statement myself,

voluntarily, that they have been unconventional,

but it is a creative attempt to deal with an

unconventional legal problem. They have in fact

been based on facts which have not been and I

believe cannot be disproved yet, which facts have

never been properly admitted or examined by any
lower court in which decisions on this issue have

been made.

Now, I believe my appeal in the Supreme Court

may well succeed on that ground, not only that the

facts have been omitted to be considered but in

fact that there has been misleading by the bank and

counsel for the bank. So in effect, the matter is

not concluded, the issue is not yet determined and

the error still exists. So the original purpose

still remains. The reasonableness of the action

sterns from an attempt by a commercial organization

to acquire property from me - - -

HIS HONOUR:  Do not take me into the area of the Supreme

Court dispute.

MR CUSACK:	I am sorry, no, that is the reasonableness of the grounds, in the bulk of my High Court
matter. All I am saying is that the reasonableness
applications, Your Honour, have related to that ANZ
of the grounds of my actions - Order 63 rule 6 refers to the reasonableness "without reasonable
ground". It is not the reasonableness; it is that
they are unreasonable, or that there are no
grounds.  I was simply allowing that there may be
some gradation in the reasonableness of the
grounds.  I believe I have, I think, shown that the
words "without reasonable ground" cannot possibly
be applied to my case. Not only are there grounds in alleged fraud by a bank, possibly criminal
behaviour by an officer of the Supreme Court in
refusing a legal tender in an arbitrary fashion as
section 92 of the Criminal Code in Queensland; refusal by a bank of legal tender in relation to
demanding my property.

Cusack(S) 29 26/6/92

Let me take you a little further on that

refusal by the court to accept legal tender,

Your Honour.

HIS HONOUR: No, I do not want to hear from you on that,

because I do not think it has anything to do with

the application that is before me.

MR CUSACK:  I think reasonableness of grounds, Your Honour;

the existence of grounds and the reasonableness of

them.

HIS HONOUR:  The reasonableness of the grounds can be judged

from the proceedings themselves and from the

decisions that were given in those proceedings. It is not, as I understand the law, relevant for me to

inquire into conduct which may have given rise to

some desire on your part to have some aspect of the

law clarified, particularly when it has, on the

face of it, been clarified by earlier decisions.

MR CUSACK:  I should draw your attention, Your Honour, to

that portion of the material submitted by the
applicant which refers to the incident involving
the registry in the Supreme Court of Queensland
refusing to accept gold coin, and thereby

preventing my appeal.

HIS HONOUR:	Yes, but, Mr Cusack, that is there as part of the material before me, it is material that you
have brought into existence in support of the
various applications. That does not make it a relevant consideration from the point of view of
this application. That is an inquiry into the facts that gave rise to the institution of various
proceedings, and that would involve a canvassing of .the entire history of all the circumstances giving
rise to litigation in which you have been involved.
MR CUSACK:	Am I restricted, Your Honour, to arguing grounds

as they have appeared in those documents of mine?

HIS HONOUR:	I am not sure what you mean by that.
MR CUSACK:	The reasonableness of grounds for the actions

which have been presented, you are in fact

restricting me to that.

HIS HONOUR:  But do you not understand that what I have

suggested to you was the crux of the case against

you, which may be good or it may not be good, but

it is that faced with a determination at an early

stage of certain questions that you wish to argue

before the Court, you have continued to bring

proceedings with a view to having those questions

canvassed time and time again. Now, that is the

sort of case that is put against you. There are

Cusack(S) 30 26/6/92

questions of frequency, there is the question of

whether there have been reasonable grounds, in the

sense that I have tried to explain to you, the

question whether the proceedings have been

vexatious, and questions as to whether in fact how

many proceedings have been instituted by you,

bearing in mind that on a number of occasions the

Registrar sought a direction which was given that

process was not to be issued without the leave of

the Court.

MR CUSACK:	Yes, I understand you have taken those points.
HIS HONOUR:	They are questions that I will take into

account when I am considering this matter. But

unless you have anything else specifically in

point - - -

MR CUSACK: Let me just pause for a moment, Your Honour, if

I may. I am not trying to soak up time, as you can

well understand; more than enough has gone into

that. Yes, I would just like to touch briefly on

Order 72 rule 4 of the High Court rules,

Your Honour. If you are not familiar with it, it

relates to the sufficiency. The word "sufficient"

appears in that rule. Let me read it:

When a judgment is pronounced in a proceeding, either by a Full Court or a single Justice,

and the opinion of a Justice is reduced to

writing -

and this clearly covers all of the cases in which

we have been involved, that are recorded in the

documents. The next part is the part I object to:

it is sufficient to state orally the opinion

of the Justice without stating the reasons for

the opinion.

Now, Your Honour - - -

HIS HONOUR:  No, no, you must read on.

MR CUSACK: All right:

but his written opinion shall be then
published by delivering it to the Registrar or

associate in open Court.

HIS HONOUR: Yes, but the purpose of that rule, Mr Cusack,

is simply that from to time, for various reasons,

sometimes reasons of time, a justice of the Court

or the Full Court itself may say, "this is the

result of the matter before us, the application is

refused or it is granted", and reasons will be

delivered later.

Cusack(S) 31 26/6/92

MR CUSACK:	I understand that, Your Honour.
HIS HONOUR:	And in those circumstances the rule operates to

ensure that reasons are provided.

MR CUSACK:  I do not want the rule scrubbed, I believe the

rule has a practical purpose and I support its

purpose as you describe it. I do have one

qualification which I believe ought to be

considered which relates to my earlier submissions,

and I believe arises from this rule as it is worded

now. That is a blanket statement to say, and at

the end of the second line, "it is sufficient to

state" and then let me leave out irrelevant words:

it is sufficient to state •.... the

opinion ..... without ..... reasons.

Now, I made the submission to you, Your Honour,

that this is what has happened in the judgment as

published by Justice Deane.

HIS HONOUR:  But you seem to be reading this rule as if it

is some authority for a judge to determine the case

without giving reasons. All it says is that he may

orally - - -

MR CUSACK:  Let me take you to the actual words,

Your Honour.

HIS HONOUR:  I know the words.

MR CUSACK:  The key words are "opinion" and "reasons". Now,

any opinion which is not supported by reasons is

quite literally a matter of opinion. It is very,

vecy different from a reasoned judgment.

HIS HONOUR:  There are reasons given in this case. I know

you do not accept them.

MR CUSACK:

I am sorry, Your Honour, I cannot find them and

I believe that is the key to the problem and the

only justification for that state of affairs is

that wording of Order 72 rule 4 which allows an

opinion to be given without reasons.

HIS HONOUR:	I will have regard to what you say on that.
MR CUSACK:	I submit to you, Your Honour, that reasons have

not been published for the opinion expressed by

Deane J, and that is the key, that is quite

literally the key, to why that judgment has

withstood so many assaults. The assaults are

attempts to find the reasons and my real plea,

Your Honour, as in my affidavit, is that the non-

disclosure of reasons for an opinion constitutes an

abuse of the court process, particularly against a

Cusack(S) 32 26/6/92

lay person, because the lay person needs to

understand what the reasons are in order to be able

to challenge the reasons. I seek an order,

Your Honour, to the effect that all evidence and

arguments advanced in support of the existence be

overturned and rebutted - this is the key, so that

valid substantial reasons capable of supporting the

conclusion of Deane J can now be published or

otherwise made known. I am on page 15 at

paragraph 40 of my affidavit, Your Honour.

HIS HONOUR:  That is a submission that you have made several

times, and I understand the submission that you are

seeking to make.

MR CUSACK:  I believe, Your Honour, acceding to my

submission in paragraph 40, particularly the last

three lines of it, would enable a way to be found

for this endless chain, as it may be seen, of

litigation to be rationalized on a proper basis

which both sides can comprehend. There is a

requirement for comprehension on both sides. I am

prepared to accept the reluctance to proceed on an

issue as crucial as this. I believe the Court is

also, and properly, hesitant to bar what is a

natural right under our system of law, and I would

ask the Court to exercise its discretion in

relation to these applications, the discretion

being that an alternative manner of acting can

remove the need for actions of the type which have

apparently vexed the authorities.

The authorities need not be under attack. authorities merely need to recognize the very The

simple and precise nature of the problem which they

are refusing to address. There may well be

perfectly valid reasons of which I am not aware for

·taking the action which the courts and the

authorities have taken in response to both myself

and Mr Skyring, and the degree of vexation on our

particularly in terms of mental anguish of myself side is no less, I might submit, Your Honour,	and my family over threats to property when I stand
upon the Constitution of this nation with the warrant of our Sovereign Lady the Queen in my hand,
and that is the only defence I have. I will not
let that defence go. That defence will withstand
anything that the authorities can throw at me while
we retain a constitutional form of government,
Your Honour.

HIS HONOUR:	Yes, thank you, Mr Cusack. Mr Robertson?
MR ROBERTSON:	Your Honour, just briefly there are one or

two matters. Could I mention to Your Honour

without reading it in any way one or two of the

paragraphs in Mr Cusack's affidavit.

Cusack(S) 33 26/6/92

HIS HONOUR:  If you could just identify them, Mr Robertson.

MR ROBERTSON:  Yes. The affidavit sworn 17 June 1992 and if

I can just give Your Honour the numbers, it is

paragraphs 7, 12, 13, 27 and 29.

HIS HONOUR:  And for what purpose do you draw attention to

those paragraphs?

MR ROBERTSON:  They show the relationship, if it needs to be

shown, between these actions of Mr Cusack's and the

actions of Mr Skyring. So that, in a sense, it

could not be said, if it was to be said, that

Mr Cusack was, for example, unaware that matters

were being determined from time to time in

proceedings of which he had no knowledge. I do not

understand Mr Cusack to put that point, and it goes

to the point that I submitted, Your Honour, that

one has to look at these matters in the context in

which they have arisen.

Going to another point, Your Honour, briefly,

as I understood what Mr Cusack was saying, his real

point on the substance of the application, that is

the reasonable ground, vexatious proceeding ground,

came down to this: that he was not disputing the

frequency with which applications have been brought

but he was disputing that the applications were

unreasonable because, as I understood it, the

judgment of Justice Deane - and I assume the
judgment of the Full Court upholding that
judgment - did not satisfy him in point of the

reasoning disclosed in the judgment. That seemed

to be the point.

But just on the frequency question I should,

Your Honour, correct one thing that I said before.

I said that I thought in relation to Mr Cusack

there had been no occasion on which he sought to

issue a document but where he had not later, in the

face of a direction, sought leave to issue a

document. There is one proceeding where a

direction was made that it not issue and it seems

that it was not challenged.	I should correct that,
Your Honour.

HIS HONOUR:	Can you identify that one?
MR ROBERTSON:	Yes, it is the one referred to in

paragraphs 6 and 7 of the Registrar's affidavit, so

that if one was doing purely a quantitative

analysis, there would actually be a conformity

between the five judgments in Mr Cusack's

applications and, in the applicant's submission,

the five proceedings that had been instituted, each

one of which, as it turned out and as perhaps one

Cusack(S) 34 26/6/92

would expect, ended in a judgment and I have

already identified those judgments to Your Honour. The last point perhaps to mention is that, as

Your Honour will recall, the Court of Appeal

discussed in Vernazza's case and indicated that an

appeal probably would be, in terms of the English

rule, an institution of legal proceedings. Those

matters are discussed in an authority, a decision

of a single judge of New South Wales, and I do not

know that I have handed a copy of this to

Your Honour. It is called the Hunters Hill

Municipal Council v Fedler.

HIS HONOUR: 

No, you have not.

MR ROBERTSON: 

I do not think I have given Your Honour a

copy of that. It is reported in (1976) 1
NSWLR 478, and the relevant passage which goes to

the point I have just mentioned, I will not read it

to Your Honour, but it is at 488E, where His Honour

touches on interlocutory proceedings not being
probably within the section. But His Honour says:

I think, without endeavouring to supply an exhaustive definition, that, where a final

decision has been given, any attempt, whether

by way of appeal or application to set it

aside, or to set aside proceedings taken to

enforce such decision, which is in substance

an attempt to re-litigate what has already

been decided, is the institution of legal

proceedings.

And the top of the next page, His Honour refers to

Re-Venazza in the Court of Appeal. Those are the

submissions, Your Honour, if the Court pleases.

HIS HONOUR:  Thank you, Mr Robertson, thank you, Mr Cusack.

The Court will reserve its decision and will now

adjourn.

AT 3.18 PM THE MATTER WAS ADJOURNED SINE DIE

Cusack(S) 35 26/6/92