Jones v Skyring

[1992] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 1992

B e t w e e n -

FRANK WILLIAM DUDLEY JONES

Applicant

and

ALLAN GEORGE SKYRING

Respondent

Notice of Motion

Application pursuant to

Order 63 rule 6 of the High

Court Rules

Skyring(13) 32 26/6/92

TOOHEY J -

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 26 JUNE 1992, AT 11.35 AM

(Continued from 25/6/92)

Copyright in the High Court of Australia

HIS HONOUR:	I renew my apologies, but I hope now that I can promise you an interrupted hearing.	Mr Robertson.
MR ROBERTSON:	Thank you, Your Honour.	Your Honour, at the

adjournment yesterday I had taken Your Honour up to

paragraph 36 of the affidavit of the Registrar.

HIS HONOUR:	We had concluded volume 2, had we not?
MR ROBERTSON:	We had concluded volume 2 although I will

need to refer briefly to the last pages of that in

a moment, but Your Honour will recall that there

were a series of documents at exhibits 42 and 43

and so on, the status of which did not appear from

the documents themselves, but they sought against

the Attorney-General of the Commonwealth:

a Writ of Certiorari to remove into the Court

for review to determine the ..... validity -

relative to the Constitution, of certain provisions
in the Reserve Bank Act and the Banking Act and so

on. And then, at the beginning of volume 3 ih

exhibit 45 to the affidavit, which is the matter

referred to in paragraph 36 of the affidavit, there

is an application for an order that "leave be

granted". And if I could just remind Your Honour
that that application was made necessary by the

order - of which a handwritten version appears - of

Justice Wilson, and that is at exhibit 43.

So, exhibit 45 was caused by the order under Order 58 rule 4(3), that appears in exhibit 43.

So, that is that application for an order for leave and exhibit 46 is the affidavit in support by

Mr Skyring and, if I could take Your Honour to the

machine-stamped page 251, if Your Honour can make

that out.

HIS HONOUR:  Yes, I have that, thank you.

MR ROBERTSON:  Paragraph 2 begins in the middle of the page.

"The factual circumstances" are referred to. It is

said there that they:.

have been detailed extensively in three

affidavits sworn -

on various dates, and below that it says, about

point 8 of the page:

In summary, the present line of action could

be fairly said to have been necessitated by

the exhaustion of all avenues of the appeal

processes of the law through the courts, the

initial action having been embarked upon in

what seemed to be the most appropriate forum,

Skyring(13) 33 26/6/92

in an endeavour to point up and have corrected

some very fundamental flaws in respect of the

way the nation conducts one of its more vital

functions, viz its financial affairs, which

flaws have caused me in particular and, on

reflection it seems, the people of this nation

in general much unnecessary trouble over a

very long period of time.

And then there is a reference to the history of the

matter in the Supreme Court of Queensland. There

is a reference to a writ of summons issued by the

paragraph 3 begins, there is a reference to: Deputy Commissioner of Taxation and, just before

a series of inter-related constitutional

points lie at the centre of the matters

disputed.

And then, over the page, Your Honour, at about

point 4 of the page, there is a sentence that

begins, "The central constitutional issue".	Does
Your Honour see that?

HIS HONOUR:	Yes, I have that.
MR ROBERTSON:

which has come to be known as "the currency

question" has in fact not been satisfactorily

and durably resolved in previous High Court
judgments, as claimed in and upheld by the

lower court, since physical evidence still may

be produced to demonstrate that the patent

constitutional/statutory conflict continues.

And then, over the page, paragraph 4 refers to: Specific conflicts between statutes are set

out in shortest detail in item 2 of -

an earlier affidavit and the two dot points in that

paragraph refer to:

• at federal level, relating to the validity

of certain federal statute provisions

vis-a-vis the Commonwealth Constitution, and

• at the state level, concerning the securing

of rights of the individual which remain

within the scope of the state constitution, in

particular, mortgagee 'Power of Sale'
provisions, vis-a-vis Cap. 8 of the 'Magna

Carta'.

Then, on the last page of that affidavit, which is machine-stamped 258 - it is page 10 of the

Skyring(l3) 26/6/92

affidavit - there is a reference to part of

Mr Justice MacPherson's judgment, going over from

the bottom of the previous page, about the form of

money and the legality of that form. That gives

Your Honour an idea of the contents of the

affidavit. And then that matter, that application

for leave, came before Mr Justice McHugh - this is

exhibit 47 - on 28 February 1989, and that

transcript follows. There are two things to be

said about it: the first few pages set out

Mr Cusack's argument, and I can take Your Honour

through to page 16, which is machine-stamped 275; the other thing about it is that my copy, some of
the pages are not in the right order. There is the

page numbered 275 at the top and 16 at the bottom.

Does Your Honour see that?

HIS HONOUR:	Yes.
MR ROBERTSON:	And His Honour Justice McHugh says:

Yes. I will hear what Mr Skyring has to say

in support of his application.

Then page 17 is, in fact, in my copy not the next

page, but two pages further over,

machine-stamped 278 -

HIS HONOUR:  Page 276 on mine, I think.

MR ROBERTSON:  Yes. I follow. It has been stamped in the

right order but the pages have got out of order.

At point 3 of 276, then, Your Honour, Mr Skyring

says:

If I could just carry on in respect of the points which you put to Mr Cusack early on in

respect of where I thought the bench

previously was wrong - if I may use that

word - in respect of the earlier ruling given

by Justice Deane.

I do not need to take Your Honour through every

page. Could I take Your Honour to machine-stamped

page 287, which is page 26 of the transcript, point

3 of the page; it refers to a bit of the history of

the matter. Mr Skyring says:

So I had a go in the State Supreme Court

against State Cabinet and then here against

the Federal Cabinet which was heard by

Justice Brennan and I had sort of worked the

changeover to interrelate the money thing to

government because it all swings on this

creation of money.

Skyring(l3) 35 26/6/92

I take Your Honour to that because that shows, not

that it is essential, in my submission, to the

Registrar's application, that all of these applications, whatever form they have taken, are

all founded on that question of the creation of

money. So, even if it involves a challenge in the

legality of Cabinet, that appears to be the

foundation of it. And then, Your Honour, at the

foot of page 31 of the same transcript,

Justice McHugh says this:

Mr Skyring, quite apart from any view I might

hold about the matter, the fact is that the section 36 is a valid enactment.

And then, turning over a few pages, there then

Your Honour to page 45 of the transcript, which is appears His Honour's judgment. If I could take

309 of the book, at point 2 of the page His Honour

says:

Mr Cusack, it is impossible for me to disregard -

that is to Mr Cusack who then resumed the argument,

what has been said by the Full Court. Then

His Honour, at the foot of that page, says that he

will commence to give judgment in the matter of an application by Alan George Skyring. Now,

His Honour then lists the matters that were before

him. At the top of page 46, His Honour says:

This is an application for leave to issue

process -

and that is the application that I have taken

1our Honour to, exhibit 45.

On 7 February 1989, Justice Wilson, pursuant

to Order 58 rule 4(3) .•••• directed -

et cetera, and that is the direction at exhibit 43.

And then His Honour Justice McHugh refers to the

process which the applicant seeks to have issued

and in the next paragraph says, "The first one is a

writ of certiorari" et cetera. All of those are

the documents in exhibit 42 where Your Honour asked

yesterday what the status of them was. So they

were the matters in relation to which Mr Skyring

was seeking leave to proceed.

Then His Honour's reasons, having set out the

argument, begin at page 48. At about point 3 of

the page His Honour says:

Skyring(l3) 36 26/6/92

It will be seen that the basis of the

application is a far-reaching attack on the
legal framework of the financial system ..... in

particular, Mr Skyring wishes to challenge the
validity of section 36(1) of the Reserve Bank

Act 1959, which provides:

"Australian notes are a legal tender

throughout Australia."

The alleged invalidity of this

sub-section is fundamental to Mr Skyring's

attack on the validity of the financial

system •.... It was also argued alternatively

that section 36(1) was impliedly repealed by

the Currency Act 1965. But there is no

substance in this argument.

It is plain enough that section 36(1) of

the Reserve Bank Act, 1959, is authorized by
the provisions of section Sl(xii) of the

Commonwealth of Australia Constitution Act,

1900. I did not understand Mr Skyring to

dispute that, prima facie, this was so. However, he seized on the provisions of section 115 of the Constitution -

and His Honour then sets that out, and His Honour

then says:

As I understood his argument, the provisions

of section 115 prevent the Commonwealth from

making notes legal tender in payment of debts.

I am unable to accept this argument.

Section 115 is directed to the States, not the

Commonwealth. It would be sufficient to

dispose of this summons on the ground that the
argument of the applicant breaks down at the

threshold. But independently of my own views

concerning the matter, this Court, on a number

of occasions, has dealt with this or a similar	argument on the part of Mr Skyring and
Mr Cusack and has upheld the validity of the relevant provisions which Mr Skyring in the present application seeks to attack.

Then His Honour sets out the relevant part of the

yesterday, and then, at the top of page 50, refers first judgment that I took Your Honour to	judgment of Justice Deane, which was, I think, the
to the judgment of Justice Wilson, which I have
also taken Your Honour to, and at point 5 of
page 50 of the transcript, His Honour said:

In the circumstances, it is plain that

the matters which are sought to be litigated

by the issue of process in this case have been

Skyring(l3) 37 26/6/92

already litigated and ruled on by the

Full Court and by Justice Deane in 1985.

Mr Skyring sought to distinguish the judgment	of the Full Court by suggesting that it had
been overruled by implication by subsequent
decisions of the Court, apparently in further
applications brought by him. However, I was
not referred to any remarks of this Court
specifically reversing that decision.
In the circumstances, to allow the matter to proceed would be futile. The only order
which I can make is that the application for
leave to issue process in this matter be
refused. I so order.

And then His Honour goes on to deal with

Mr Cusack's application.

Then, at exhibit 48 is the application for

leave to appeal from that decision of

Mr Justice McHugh, and exhibit 49 is the affidavit in support, and to give Your Honour the flavour of the affidavit, page 2 of the affidavit, point 3 of the page, where the deponent refers to the

situation having:

arisen as a result of the continuing physical
impossibility of my being able to pay, in a

strictly legal manner in terms of the Currency

Act 1965, claims made against me by the Deputy

Commissioner of Taxation.

And so on. And then exhibit 50 is the transcript

of proceedings before Mr Justice Brennan and

Justice Dawson of 30 June 1989 and, at the top of

the·first page of the transcript is machine number,

r think, 325. Mr Skyring says:

Your Honour, this is a continuation of matters

which I have been pursuing before this Court

for some period of time, as you are no doubt

well aware.

And that argument continues for a number of pages

and, at page 12 of the transcript there is a

reference by Mr Skyring to the history of the

matter. At point 3 of the page, he says:

Mr Cusack and I have jointly, because it

period of years - have put a proposition	is a joint effort that has evolved over a
that - or certainly for my part seems to me
anyway, to answer or to have right cardinal
principles that have long been upheld by the
courts as the proper way to run society.

Skyring(l3) 38 26/6/92

Then he refers to the history of that and then over

the page, at page 13, the Court says, at point 7 of
the page:

Having heard all that Mr Skyring wishes to say with regard to the judgment of

Mr Justice McHugh, it appears to us that the

judgment of Mr Justice McHugh was correct and,

accordingly, a grant of leave is refused.

Now then, one gets to exhibit 51, Your Honour,

which is a fresh phase. this is matter Cl0l of

1990, where, as Your Honour will see from the title

of the matter, it arises in relation to:

a Petition by Alan George Skyring to declare

invalid the election of the Respondent as the

Member for Ryan at the House of

Representatives election, held on 24th March

1990.

That is the general context, but it is a summons in

relation to the payment of any fees or charges, as

it says, "in connection with any facet of this

action". The affidavit in support is the next

exhibit, exhibit 52, and paragraph 1, again, gives

the flavour of it:

This application - for a waiver of fees and

other charges, required to be paid ••... under

various standing orders, in connection with

the filling of a petition to the Court of

Disputed Returns ••••. has been necessitated by

want, now indisputably made manifest, of a

sound monetary basis, in terms of which "a sum

certain (ie unambiguous) in money" of the

requisite amount may be tendered to effect the
required payments in a legally satisfactory

manner, various interpretations made by others

of previous determinations by the High Court

of Australia on this and related issues not

withstanding.

And then the deponent refers to those questions in more detail in the subsequent pages of his

affidavit. And then exhibit 53 is the transcript

before Justice Gaudron and, at page 2 of that

transcript, point 6 of the page, Your Honour,

Mr Skyring says, "Okay. Well, in the

circumstances", and so on:

to put it in the context in respect of what

has gone before, because this action actually

started here in 1985 and it goes back beyond

that.

Skyring(l3) 39 26/6/92

And then the transcript continues over a nwnber of pages, and if I could take Your Honour through to

page 39 of the transcript where Her Honour gives

her judgment. The judgment is actually reported

and that version is reproduced at exhibit 54,

Your Honour. It is reported in 64 ALJR 461, and Her Honour said, in the right-hand column at the

foot of that page:

The basis for that petition is a claim by

Mr Skyring that he and he alone was validly

elected in the last election to the seat of

Ryan, he being the only candidate who then

paid the required fees by way of legal tender;

his argument being that legal tender is gold

coin and none other.

Does Your Honour see that at the foot of that page?

HIS HONOUR:  Yes, I do.

MR ROBERTSON: And then, Her Honour says:

It is that argument which is at the basis of

his application under O 72, r 12. Mr Skyring

submits that it is impossible for him to

provide legal tender because of uncertainty

and, indeed, contrariety in the relevant

legislation as to what, in fact, constitutes

such tender.

And then Her Honour dismisses that application.

Then, at exhibit 55 is another fresh phase.

This is matter No Bl9 of 1990, still in relation to the petition:

Representatives election, held on

to declare invalid the election of the of

24th March 1990.

HIS HONOUR:  I take it that the petition referred to in the

earlier application had not, in fact, been lodged,

or is that a correct conclusion?

MR ROBERTSON:  It was before the Court because

Her Honour - - -

HIS HONOUR: Yes, but I assume that it had not been filed

because a waiver of fees was being sought in regard

to the filing of it.

MR ROBERTSON: Yes. And as I understand it, the fees

remained unpaid, so formally the petition was

never, in fact, before the Court. I may be wrong

about that and Mr Skyring can, no doubt, enlighten

Skyring(l3) 40 26/6/92

Your Honour in due course. But that next affidavit

I was taking Your Honour to, which is exhibit 55,

paragraph 1, the deponent refers to the action

being the,

latest in a long series of attempts to address

and provide an effective remedy for some very

deepseated and longstanding problems

confronting the nation -

and it is apparent that the question of paper money
and the Currency Act and so on, which is dealt with

in that affidavit - and Your Honour will see from

page 6 of that affidavit, point 8 of the page:

The Petitioner therefore humbly prays as

follows:-

For a declaration, to clarify the preliminary point, that there is a constitutional bar against the issue by the Commonwealth of paper

money as legal tender and that paper

instruments -

et cetera -

are not and cannot be or purport to be "legal

tender" in terms of the Currency Act.

And then:

2. for a declaration that the Respondent is

not properly elected because his nomination -

having been accompanied by the deposit of

paper instruments of the type identified

above, which were not and cannot be -

at cetera -

legal tender ••••• did not comply with the

provisions of s.170(c) of the Commonwealth

Electoral Act -

And then:

3. For a declaration that the Petitioner is
returned unopposed his nomination having been

the only one accompanied by a deposit of $250

in gold coin.

Then, exhibit 56 is the summons, again for the

waiver of fees. That is a further summons for the

waiver of fees, the earlier one, of course, having

been dismissed. And then, exhibit 57 is the

affidavit in support of the summons. So, there

again, in paragraph 1, it is said to be that the

application is a natural sequel to the turn of

Skyring(13) 41 26/6/92

events, giving rise to the petition challenging the return of Mr J.C. Moore as the member for Ryan, and

again, Your Honour will see in the affidavit the

familiar references to the Magna Carta, and the

questions of the currency, and then, that matter

came on for hearing before Justice Dawson - this is

exhibit 58 - on 26 June 1990. I will not take

Your Honour to the detail of that, but at page 11

of that transcript His Honour Justice Dawson, at

point 9 of the page, says:

But you put these matters to Justice Gaudron,

did you not?

Mr Skyring says:

Yes, but the point was that •.... the real issue is the validity of the statutes themselves and

we really need to readdress this whole problem

of the standing of Magna Carta and, in

particular, chapter 29.

And then he refers to the Imperial Acts Application

Act. And, at point 8 of that page, page 12 of the

transcript, Justice Dawson says:

I do not differ from the views expressed by

Justice Gaudron on the matters raised by your

summons and I do not think that anything has

occurred which would justify any different	result so that I must refuse the applications
contained in the summons dated 20 June 1990.

And then, at page 21 of that transcript, point 8 of

the page, His Honour says:

Not withstanding the submissions of the

parties, the matter does relate to a federal

election and I do not think that there is any

sufficient reason for me to exercise the

section 354(1) of the Commonwealth Electoral	jurisdiction conferred on this Court by
Act to refer the petition to the Supreme Court
of Queensland. Since it is clearly not
possible to hear the matter today I must
adjourn it to a date to be fixed and it is apparent that when a date is fixed the matter
must be heard in Canberra, so I do that. I
refuse the applications contained in the
date to be fixed. summons •••.• and I adjourn the petition to a

Your Honour, so far as I am aware that petition has

never co~e on again for hearing.

HIS HONOUR:  But it does imply that it has been filed, or in

some way before the Court, does it not?

Skyring(l3)	42	26/6/92
MR ROBERTSON:	Yes, it seems to have some status.	Perhaps

it is regarded as contingently available to be

agitated on the payment of the relevant fees.

Then, Your Honour, exhibit 59 is again a fresh phase. This is an application for an order under

section 40 of the Judiciary Act to remove a "cause

pending in the Federal Court of Australia". That

is exhibit 59, and then, exhibit 60 is an

application by Mr Skyring, dated 22 April 1991, for

an order that he:

be accorded standing to participate in the

argument of the fundamental points of

constitutional law involved in the case -

that I have just taken Your Honour to, that is B43

of 1990, which is the subject of the application for removal under section 40.

HIS HONOUR: Is that right, Mr Robertson? The notice of

motion of 4 December 1990, that is exhibit 59,

seeks to have the cause pending in QB 351 o( 1989

removed.

MR ROBERTSON:  Yes, but I was referring to the High Court

number, Your Honour, which is faintly discernible

at the top right-hand corner. It is actually B43

of 1990 - - -

HIS HONOUR: Yes, thank you.

MR ROBERTSON:  So then that is picked up in the notice of

motion at exhibit 60 and, in fact, Your Honour, one

can see it more clearly from exhibit 60 at the top

right-hand corner that it is B43. Then exhibit 61
is the affidavit in support of the application.

faragraph 2 at the foot of the page refers to the:

failure of the Crown authorities, and of

Queensland authorities, in particular, to

intervene in this action is but the latest in

a long line of refusals I have encountered

since I first brought the matter on appeal

before the Federal Court in late 1983
following the initial statement of and
determination on the issues by MacPherson Jin

the Queensland Supreme Court on 19th August
1983.

And then, over the page, Your Honour, paragraph 8

of the affidavit:

By way of substantiation of my contention that

both state and federal authorities are not

capable of dealing effectively with the

situation, I cite the three most recent

Skyring(l3) 43 26/6/92

occasions when I have served 78B notices on

the Queensland, Commonwealth and other State

Attorneys-General. To my mind, their

responses on all occasions were less than
adequate to effectively deal with this vital

currency question which I have quite properly

raised. Though the form of payment has been a

common thread in all instances, the respective

circumstances involve different parties and

contexts.

And we would respectfully submit that that is an

accurate statement of the position.

Then the next exhibit is exhibit 62, which is

again a fresh application because that seeks to

remove District Court proceedings, described as

FT 628/91, again under section 40. And exhibit 63

is the affidavit in support of that application,

which Your Honour will see from paragraph 1 of the

affidavit, says:

·This application is made to complement my

prior application B43 of 1990, filed on

7th December 1990, and yet to be heard, by

calling into question the ultimate legality of

the Taxation Acts generally and, in this

instance, of the Income Tax Assessment Act

1936 and Taxation Administration Act 1953,

particularly, due to the impossibility of

anyone's being able properly to discharge

their obligations under their provisions as a

consequence of the statutory conflict relating

to the nation's currency. That conflict is

which seeks clarification of fundamental	the subject of my application B43 of 1990,
points relating to the currency of the nation.

So, I do not need to take Your Honour through any

more of that affidavit. Then, at exhibit 64, the matter comes on for hearing. Again, that page is	perhaps back to front. Your Honour will see from	the next page that it came on before the
Chief Justice, and there were appearances for the
Deputy Commissioner of Taxation and the
Commissioner of Taxation, and also for the
Attorney-General of Queensland, the Solicitor-General here. And then the transcript,
passages: page 4 on machine-stamped 446, at point 7 if I could take Your Honour just to one or two
of the page His Honour the Chief Justice says:

The difficulty as I see it, from your point of

view, is that the submissions that you wish to
make and have considered by the Full Court on
a removal application are submissions which

have already been rejected by this Court.

Skyring(l3) 44 26/6/92

And then on the next page, page 5, point 8 of the

page, His Honour says:

Yes, but Mr Skyring, as I have already pointed

out to you, the submissions you are making are
the submissions you have made in the earlier

cases.

And then His Honour says, at the foot of the page:

But the Court is not in the habit of reviewing

its decisions whenever a litigant wants them

reviewed.

and then, going through that transcript,

matters said to arise under the Constitution are	His Honour's judgment begins at page 21, and the
set out at page 22, at the top of the page, and
Your Honour will see, "(i) The legality of the
physical tokens", and "(ii) ••... the constitutional validity of the Income Tax Assessment Act", and then His Honour the Chief Justice says, below those paragraphs:

This is by no means the first occasion on which Mr Skyring has endeavoured to pursue

these points in this and other Courts.

And on the next page, page 93, refers to the

further down that page, refers to the Full Court	judgment of Justice Deane on 6 February 1985, and
dismissing the appeal against that decision, and
His Honour refers to some more of the history,
about point 8 of the page, where His Honour says:

I would add that section 115 ••••• is a

provision addressed to the States and not to

the Connnonwealth. I should also refer to a

later attempt by Mr Skyring to raise the

currency question. That was the subject of a	further writ which Mr Skyring sought leave to
issue. An application for leave was refused
by Deane Jin 1988, and his refusal to grant
leave was again upheld by the Full Court of this Court. On that occasion the Full Court
said that there was not sufficient substance in the points which Mr Skyring sought to
raise. Accordingly, the application for
removal must be refused.

And then His Honour deals with the other

applications that were pending in the Court and, at

point 8 on page 24 of the transcript, says:

In the result, I refuse the two

applications for removal, and dismiss the

Skyring(l3) 45 26/6/92

notice of motion which is associated with

No B43 of 1990.

That notice of motion, Your Honour will recall, is the one that Mr Skyring be given standing to argue

the constitutional question.

Then, at exhibit 65 there is the notice of

motion for leave to appeal against the judgment of	the Chief Justice. Exhibit 66, which is the
affidavit in support, and paragraph 1 refers to the
chain of proceedings that His Honour the Chief Justice had been dealing with and then, a few
pages further on at the page stamped 473,
Your Honour will see the notice of appeal which
refers to, at the foot of that page, those
questions of validity, and then the notice of appeal says, at the top of the next page:

an incorrect inference was drawn, to the

effect that these points had been "finally

determined". The fact is that in all previous

hearings where these points were raised, which

proceedings were subsequently cited to justify the refusal of the application, no opposing

evidence or argument was ever put or heard to

demonstrate any error in those contentions.

That was the notice of appeal, and then at

exhibit 67, which is the last exhibit, the matter

came before the Full Court and on page 479, which

is page 2 of the transcript, Mr Skyring says at

point 5 of the page - does Your Honour have that:

Basically, the small matter of what actually constitutes legal tender in this country.

justice Brennan says, at point 8 of the page: This is the same question that you have raised

in this Court on a number of occasions.

Justice Brennan says: 

This is the same point that was dealt with by

Justice Deane in an application in

February 1985?

And over the top of the page Justice Brennan says,

"Is it the same point?" Mr Skyring says:

In essence yes, but by view of that matter was

that he only ever stated the case at that

time. There was never an opposing argument

to - at least there was nobody else there at

the time.

Skyring(l3) 46 26/6/92

Justice Brennan says:

Mr Skyring, you have endeavoured to bring this

matter before this Court time after time.

Now, on each occasion, as I understand it, you

failed.

And then, on the last page of that transcript, at

page 6 of the transcript, which is 483, I think,

the application is refused.

Your Honour, that is the evidence on behalf of

the applicant and I would wish, at an appropriate
time after Mr Skyring's evidence, to make some

short submissions on matters of law and the facts

that I have taken Your Honour to.

HIS HONOUR:  It might be helpful, Mr Robertson, if I

canvassed one or two matters with you before

Mr Skyring speaks so that he will appreciate some

of the issues that are raised by this application.

MR ROBERTSON:	Yes, Your Honour.
HIS HONOUR:	I think I pointed out to him yesterday that the

effect of Order 63 rule 6, or rather an order made under that provision, is to preclude a person from

bringing any action, appeal or other proceeding in

this Court without the leave of the Court. Now,

that order may be made if the Court or a Justice is

satisfied that a person has frequently and without
reasonable ground instituted vexation legal

proceedings. "Frequently" is an ordinary enough

word1 "reasonable ground" likewise, I think.

"Vexatious legal proceedings": what does that add,

if anything, to the earlier expressions

"frequently" and "without reasonable ground"?

MR ROBERTSON: Your Honour, in my submission, there is some

overlap between the notions that are dealt with. The first part of the expression seems to deal with	the institution of legal proceedings, that is	"frequently and without reasonable ground has
instituted", and then the remaining three words
involves or seems to involve the characterization
of the legal proceedings themselves. But, what it
is addressed to, in my submission, is that one has
to ask - another way of putting the statute is to
say, "Have these vexatious legal proceedings been instituted frequently and without reasonable
ground?", which seems to involve the notion that
there may be, in some circumstance, a reasonable
ground for instituting vexatious legal proceedings.

HIS HONOUR:  That is right. I mean, on one reading of the

matter one might conclude that if proceedings have

been instituted "frequently and without reasonable

Skyring(l3) 47 26/6/92

ground", they are by virtue of those facts alone,

vexatious.

MR ROBERTSON:	Yes, so there is some overlap, or even perhaps some tautology involved in the concepts
that are used. But the courts are then, in earlier cases, under statutes in similar terms, asked the question, in a rolled-up form, "Have these
vexatious legal proceedings been instituted without reasonable ground?", and then move to look at such questions as I mentioned yesterday to Your Honour,
the character of the proceedings, the remedies
sought, the grounds on which they are sought and
the persons against whom the orders were sought, and approached the matter in that light.

The one matter that, on the authorities, is

tolerably clear, in my submission, is that the test

that is posed is not a test which is subjective,	in other words, it is not open to a respondent to
such proceedings to say, "I, at all times, have not intended to vex anyone and therefore I cannot be vexatious". Well, I will not trouble Your Honour -
moment. It is a matter that was touched on by perhaps with just one or two authorities, at the
Justice Walsh as a Justice of this Court, in a
matter called Hutchinson v Bienvenu, where
His Honour gave judgment, again on an application under this rule on 19 October 1971.

HIS HONOUR:  Will you see that Mr Skyring has a copy of that

judgment, please.

MR ROBERTSON: Yes, he has, Your Honour. And if I c,an take

Your Honour, without going through all the facts of

this case, to that passage which appears at page 11

of the typed judgment, and this shows
.°t'fr Justice Walsh approaching the matter as I have

indicated, just about point 4 of the page,

Your Honour:

Having set out the matters upon which the applicant relies, it is necessary now to

consider whether any of them was a vexatious
proceeding instituted by the respondent

without reasonable ground, whether I am

satisfied that she has "frequently" instituted

such proceedings and, if so satisfied, whether

I should make the order sought.

His Honour says:

I am satisfied that the proceedings

mentioned -

various of them -

Skyring(l3) 48 26/6/92

were instituted without reasonable ground.	I
am satisfied, also, that they were vexations
proceedings within the meaning of 0.63 r.6.
In In re Vernazza (1960) 1 QB 197, Ormerod LJ
rejected a submission that the question
whether proceedings were vexatious was subjective one which had to be decided by

considering whether the person instituting the

proceedings was acting maliciously or

otherwise that in good faith. I agree that

Proceedings may be vexatious whether or not the question is not simply a subjective one.

the person who institutes them believes that

they are justified.

And then His Honour, over the page, refers to the

three proceedings as being vexatious:

not only because they sought to treat as null

and void the bankruptcy notice and the
sequestration order, notwithstanding that

earlier attempts to have them set aside had

failed, but also because in three separate

proceedings instituted within a short period

similar claims were repeated; because there

were joined as defendants or respondents a

large number of persons who could not have

been regarded upon any reasonable view as

having all acted in concert; and because

serious charges of conspiracy and fraud were

made indiscriminately against all those

persons, although there could not have been

the slightest foundation for those charges.

And then, at point 8 of that page, Your Honour,

there is a matter that I have referred to before,

the last sentence of the middle paragraph

His Honour refers to:

The nature of the orders sought, the selection of the parties against whom relief was sought

demonstrate in my opinion that this was a	and the grounds upon which it was sought,
vexatious proceeding.

And then, the last two lines Hi's Honour says:

I am of opinion that in so far as the action sought to litigate again contentions of law

already precluded by previous proceedings the

action could be regarded as vexatious.

HIS HONOUR:  Because very often in these cases the

litigation is aimed at a particular person or

sometimes a range of persons. It is a bit

difficult to say that of the proceedings in this

case. Not that that is necessarily an important

Skyring(l3) 49 26/6/92

consideration, it is simply a consideration that

may arise.

MR ROBERTSON:	Yes.
HIS HONOUR:	I do not know how one would describe the

persons at whom the various applications were

aimed. In some cases, the petition for instance,

there is a nominated person. Sometimes it is the

Commissioner for Taxation - - -

MR ROBERTSON: And, in other instances, Your Honour, there

is the person who was elected to a particular seat

in Parliament in relation to the electoral

petition. Other cases involve offices of State,

the Prime Minister, the Treasurer, the Minister for

Science and so on. No doubt, Your Honour, with

respect, this is unusual in the sense that the

litigant has no particular animus - if I can use

that expression - against an institution, or an

individual, which perhaps one may see that

Mrs Bienvenu had but, in my submission, that does

not alter the characteristics where one can see

that it is the selfsame question and variants of it

and in different forms that has been agitated time

and time again, not only time and time again, but

seven years ago, by Justice Deane, from which an	also in the face of what is now a judgment of some
appeal was dismissed to the Full Court.

HIS HONOUR:	Yes.
MR ROBERTSON:	Your Honour, I would later perhaps refer

Your Honour to some two or three other decisions,

dealing with the quality of acts that can be said

to be vexatious, or I can do it now if it is - - -

HIS HONOUR:  I think it might be useful to do it now so that

Mr Skyring has before him essentially the whole of

the case that is being presented.

MR ROBERTSON:  As Your Honour pleases. The oldest of the

cases that I wish to take Your Honour to is a

matter called Re Alexander Chaffers, (1897) 76LT,	351. It is not a very good photocopy, Your Honour,
but - - -

HIS HONOUR: It is clear enough.

MR ROBERTSON: Is it? In the left-hand column on the first

page, the second paragraph of the report, refers to

the list of actions and short particulars:

showing their nature and the result of each

action, was set out in the schedules to the

affidavits, and from this it appeared that,

with one exception, Mr Chaffers had not

Skyring(l3) so 26/6/92

succeeded in any one of these actions, and

that such actions had either been dismissed on

his own application, or dismissed with costs

when they came on to be heard, and that on no

single occasion had any costs been obtained

from Mr Chaffers in respect of such

proceedings, so that the public were thereby

put to a very considerable expense .....

These actions were brought against the late Archbishop of Canterbury, the late	judges, the Speaker of the House of Commons,
and present Lord Chancellors, County Court
the Public Prosecutor and various other public judges, the Trustees of the British Museum,
officials and other persons. The causes of
action alleged were various, such as an action against the Master of the Rolls for falsely
and maliciously making a statement in public;
against the Speaker of the House of Commons
and another for trespass -

and so on. And then the judgment appears on the	next page, in the right-hand column, at about
point 7 of the page. There is a sentence that
begins, Your Honour, "What we have to look
at" - - -

HIS HONOUR:	Yes, I have that.
MR ROBERTSON:

is the general character and result of the
number of actions brought by the respondent:
and looking at these, it seems to me plain

that there has been a great mass of litigation

of a vexatious character, habitually and

persistently instituted without any reasonable

ground -

And then it says:

and so on. Forty-seven actions out of forty-eight failed,

and, if we add to that the fact that in none

of them have any costs been paid by the

respondent, I think it rather tends to

strengthen the inference that they were

vexatiously brought.

The applicant before Your Honour, of course, relies

on the fact that none of Mr Skyring's applications
to the Court has been successful.

recent times, in Re Langton, which is a decision of Then, to similar effect is a judgment in more the Queens Bench Division, (1966) 3 All ER 576, and

Skyring(l3) 51 26/6/92

there again I do not deal to dwell on the facts
other than to take Your Honour to 577G:

Finally, action has been instituted claiming that all the judgments and orders of the court in all the preceding actions in the matter be

set aside as being obtained by fraud. Some of

those actions have been dismissed and are at

an end. Others are in various stages, but it

is perfectly clear that the litigant has been

habitually and persistently and without any

reasonable ground -

the words "habitually and persistently" under the

English Act are used instead of the word

"frequently" in the High Court Rules, Your Honour,

that is why there is a reference to that language -

instituting vexatious legal proceedings in an

the general character of the proceedings and the results, that conclusion in inevitable.

attempt to re-litigate the matter which was

fully dealt with in the first action.

So the courts do not seem to look at the precise

flow of actions in the same detail, perhaps, as I

have taken Your Honour to.

Then, Your Honour, there is the decision of the Court of Appeal, which is referred to by

Justice Walsh in the unreported decision that I

took Your Honour to, and that is called In re

Vernazza, (1960) 1 QB 197, and Your Honour will see

the report begins on 197 and on 198, at the foot of

the page there is set out section 51 - - -

HIS HONOUR:  I am a bit puzzled by those page references,

Mr Robertson.

MR ROBERTSON:	Have I given Your Honour the wrong report?
HIS HONOUR:	I have the House of Lords judgment.
MR ROBERTSON:	It went to the House of Lords on a particular

point of statutory construction, which I will not

have to - - -

HIS HONOUR:  So, do I need the House of Lords judgment?

MR ROBERTSON:  No, Your "Honour. Thank you. I apologize,

Your Honour.

HIS HONOUR: Well, it can go back, thank you.

MR ROBERTSON: It is In re Vernazza, (1960) 1 QB 197. When

I say "No, Your Honour does not need it", no doubt

Skyring(l3) 52 26/6/92

Your Honour should be aware that it went to the

House of Lords, but not a point - it just turned	there on a particular amendment and whether the
matter was procedural or substantive. At 198 the relevant section of the Supreme Court of Judicature
(Consolidation) Act is set out and I can just take
Your Honour to that language to show the
distinction and the similarities:

If, on an application made by the

Attorney-General under this section, the

High court is satisfied that any person has habitually and persistently and without any

reasonable ground instituted vexatious legal

proceedings, whether in the High Court or in

any inferior court, and whether against the

same person or against different persons, the

court may -

et cetera. So there are a number of differences1

one is the person who may bring the proceedings,

another is that that section relates not only to

the legal proceedings in the particular court but also extends to inferior courts but in substance, in my submission, the thrust of the section is the

same.

Then, if I can take Your Honour to the facts, briefly, of this one beginning at 199. Below the

headnote there is a paragraph that begins, "In

1935". Does Your Honour - - -

HIS HONOUR:	Yes, thank you.
MR ROBERTSON:

the litigant, Anthony Vernazza, was dismissed
from the employment of a company .•... he issued

a writ -

so that is the first writ, and then, as one follows

that through, through that page, the action was

withdrawn and he then gave a notice of appeal which

"was dismissed with costs". So that is the first

writ that the judgment refers to. And then at the
top of page 200 he "petitioned the House of Lords

for leave to appeal1 but leave was refused." The

next paragraph refers to that in:

1938 he started new proceedings in the

Chancery Division •.••• by a writ -

so that is the second writ, "asking that the

next paragraph on page 200:  judgment of Swift J be set aside." And then in the

Skyring(l3) 53 26/6/92

on July 24, 1958, he once again conunenced

proceedings against the defendants by writ,

again asking for the judgment of Swift J to be

set aside.

So those are the writs that are referred to in the

proceedings that the litigant brought by sununons.	judgments, and then page 201 refers to other
The first line of page 201:

On February 10, 1938, the litigant proceeded

by originating sununons in the Companies

Court -

and then, at the foot of that page, 201, four lines

up from the bottom of the page:

on March 27, 1957, the litigant issued an

originating sununons in the Chancery Division

against the executors -

and those - I have missed one out, I am sorry,

Your Honour. Again on that page, going back to

about the tenth or twelfth line, just before the fresh paragraph, there is a sentence that says:

Then, on November 12, 1938, he asked for a

declaration that the liquidator was guilty of

misfeasance and breach of trust. That sununons

was again stood over.

Then the action was brought to have him declared a

vexatious litigant and there are some pages of

argument, and then the relevant part of the

was mentioning earlier, at page 208, about point 4 judgment dealing with these words that Your Honour

of the page, in the middle of the line, the words,

"The submission Mr Bagnall put forward" - - -

HIS HONOUR: Yes.

MR ROBERTSON:  - - - Mr Bagnall appearing for the

respondent:

was, first, that the wording of the Act deals

with actions instituted "without any
reasonable ground," and which are "vexatious

legal proceedings." Therefore he submitted

that, in order to be satisfied before an order

is made that the conditions of the section

have been complied with, it is necessary to

view whether the proceedings were instituted consider first from the objective point of

without any reasonable ground, and that each

separate action should be considered and
decided on accordingly. Secondly, the

question should be considered as to whether

Skyring(l3) 54 26/6/92

they were vexations, and that was a subjective

matter, and really had to be decided by

considering whether the appellant was acting

maliciously or otherwise than in good faith.

If I may deal first with that submission,

in my opinion it is not the right way to look

at the matter. The words of the section are

"without any reasonable ground instituted

vexatious legal proceedings". They are

referring to legal proceedings, and the

question is not whether they have been

instituted vexatiously but whether the legal

proceedings are in fact vexatious. I suppose most proceedings are vexatious to the persons

against whom they are directed, and,

therefore, the further question has to be

considered whether, though they may be
vexatious, they have been brought without any

reasonable ground. That is a matter for the

court to decide. But if, in the opinion of
the court, the proceedings are vexatious and

there is no reasonable ground for bringing

them, then they are within the category at

which this section aims.

And than Mr Bagnall went on to deal with the

"persistent" point, and then there was some

discussion on page 209 of quite what the expression

"institute proceedings" meant: whether it meant, as

Mr Bagnall submitted that it meant, an action

commenced by a writ or whether, as the

Attorney-General submitted, it was taking any step, at all, in the action, and the Court found it

unnecessary to decide finally what the expression

meant, but said it meant neither of those things

which were at the extremes. So, on page 209 of the

report, the last paragraph, the judgment says:

In this particular case there are various matters which have been referred to which

might or might not be said to constitute the

institution of proceedings. There are two

actions which have been dealt with which, by

common consent, are proceedings which have

been instituted. There are a number of appeals

to this court and, if not appeals to the House of Lords, petitions for leave to appeal to the

House of Lords. I think the question whether

petitions to the House of Lords for leave to
appeal amount to the institution of

proceedings is a question which is very much

in doubt. The question also arises whether an

appeal to this court can be regarded as a

separate institution of proceedings other than

an institutiori of proceedings in the original

action. It is probably unnecessary to decide

Skyring(l3) 55 26/6/92

that question here, but I lean to the view

than an appeal to this court from a decision of the High Court or from any other court is the institution of a separate proceeding. But

apart altogether from the question of appeals,
there are the summonses to which I have
referred which were taken out in the
liquidation as part of the attempt by the

appellant to obtain the money which he alleged

was owing to him by the company .

And then Lord Justice Willmar - on page 214, the

that I referred to, at about line 10, towards the	judgment begins there, and at 215 is the matter
end of the line, where the judgment says:

I do not think that this is an occasion which makes it necessary to attempt the almost impossible task of drawing an exact line

between that which does and that which does

not amount to "instituting" proceedings.

Speaking for myself, I should have thought

that there is much to be said for the v,iew

that, when one institutes an appeal in an

action which has already been disposed of, one

can fairly be said to be instituting

proceedings, even though the title of the

action and its number may be the same when it

gets to the Court of Appeal as in the court

below. If that is a correct view, or anything

like a correct view, then it must be clear

that in the 20 years or so which have elapsed

since the dismissal of the original action

there have been numerous occasions when

proceedings have been "instituted."

.	Were they then "vexatious" proceedings?
.	As to that, it seems to me that, ever since

March 10, 1938, the day on which the Court of

Appeal gave judgment in the original action,	and the day on which Greer LJ made the remarks
which my Lord has already read, there has been	no possible reason for the institution of

fresh proceedings by Vernazza arising out of
his claim against Baburizza & Co Ltd. That is

enough to dispose of the submission of fact

which is so important for Mr Bagnall's

argument, namely, that the institution of the

1938 action was not vexatious. It seems to me

that there was abundant evidence before the

coming to the conclusion that the institution· Divisional Court which would justify them in

of that action, involving as it did the
consequential institution of a number of other
proceedings and the prosecution of a number of
appeals, gave rise to the institution of
vexatious legal proceedings which over the

Skyring(l3) 56 26/6/92

years may fairly be said to have become

"habitual" and "persistent."

Then, Lord Justice Harman, on page 216, agreed;

desired to reserve his opinion:

as to what exactly may be meant by the words

"institution of legal "proceedings." I am of

opinion that even the narrowest view would be
enough to constitute the plaintiff's actions

vexatious litigation. There have been two

writs and three originating summonses which

are clearly, on any view, the institution of

proceedings. They are all part of the

vendetta by means of which for 20 years this

man has harassed the company, its liquidator,

its principal shareholder, and his personal

representative.

And that, as I mention to Your Honour, was the

decision which Mr Justice Walsh referred to and

relied upon in the judgment that he gave.

HIS HONOUR: There is a consideration here that perhaps does

not arise in some of these cases, Mr Robertson.

Because of the operati9n of the other rule of the

High Court Rules, by which the Registrar can

decline to accept process that appears to be
scandalous or vexatious without the leave of the

Court, and if leave is refused, can it be said of

that particular process that it is a proceeding

that has been instituted?

MR ROBERTSON:  Your Honour, the applicant would submit this,

that whether one needs to count up to get to a

particular figure or not in another case does not

arise here because we would submit that on any view

there has been frequent and without reasonable

ground institution of vexatious legal proceedings.

In a case such as that where a proceeding is sought

to be brought and then the court interposes, as it

were, another step in order to allow their

institution, the preferable view would seem to be

that one would only count them once rather than

twice, if one is talking about frequency of the

institution of vexatious legal proceedings,

because, in a sense, the institution of them has to

take two steps; in other words, the filing of the

document and then some further step in order to be

allowed to issue the legal proceedings.

It may be, as Their Honours in the Court of

Appeal found that the words "institute legal

proceedings" are very difficult words and really

one can see on the one hand, obviously it does not

mean every interlocutory step that may be

taken - - -

Skyring(l3) 57 26/6/92

HIS HONOUR:  That is within the confines of an action that

has been commenced, is it not?

MR ROBERTSON:  Yes, quite so.

HIS HONOUR: Questions as to whether interlocutory steps,

notices of appeal and so on, can each be classified

as the institution of a proceeding, but I was

really looking at a situation which does not exist

here, that in theory you could have a litigant who
presented the registry of a court with 50 sets of

process, none of which was, in fact, received

because there was a refusal of leave to issue

process. Now, whether a vexatious litigant statute

or rule would have any operation there, is perhaps

a nice question, but - - -

MR ROBERTSON:  Yes. That is really an attempt to institute

vexatious legal proceedings rather than perhaps

their institution. But, Your Honour, perhaps the

way to answer Your Honour's question is to

indicate - and also, perhaps for the benefit of

Mr Skyring - by reference to the affidavit what it

is that the applicant says can be seen as the

various phases of fresh proceedings.

HIS HONOUR:  You are speaking of Mr Jones' affidavit, are

you?

MR ROBERTSON:  Yes, I am, Your Honour, and if I could give

this indication that paragraph 2, in my submission,

would be the institution of legal proceeding, as

also the proceedings instituted, referred to in

paragraph 4, and the proceedings that begin at
paragraph 6. And I would include, as all the same
pro~eedings, all the various stages that those

doc·uments went through, throughout the remainder of

. that page of the affidavit. That was matter B4 of

1985. And then one would get to the fresh

proceedings at paragraph 12 of the affidavit; that

is B3O of 1985.

Another fresh set of proceedings at

paragraph 14; that is B31 of 1985. And then if I
could just interrupt the flow: everything that

follows from and after paragraph 15 is instituted

after 9 July 1985, the significance of that date

being that was the date on which the Full Court

dismissed the appeal from Justice Deane's decision.

So, if I can resume: then paragraph 16, a fresh

proceeding; Bll of 1986, and so, by my count, that

is the sixth fresh proceedings. Paragraph 19 is

the seventh. Paragraph 21 is the eighth; that is

B22 of 1986. Paragraph 27 is the ninth; that was
the writ against the Director-General of Social Security; that is B66 of 1986. Paragraph 29, I

would submit is the tenth. Now, that is B66 of

Skyring(l3) 58 26/6/92

1987. Paragraph 30 is the eleventh; that is B67 of

1987, and paragraph 32 is the twelfth, and

paragraph 34 is the thirteenth, and that follows

through until paragraph 40. That may perhaps be

the subject of some dispute. That was the

application about the waiver of the fees or

charges. So whether that should be accepted as the

institution of proceedings may be a matter of some

doubt.

Then, 42 is action Bl9 of 1990, which is

number 15. Paragraph 45 is, on my submission, the

sixteenth; that is B43·of 1990. Paragraph 47 would

be the seventeenth, and that takes one through to

those matters having been disposed of. So, on that count I have not included, as separate proceedings, appeals within each fresh approach to the Court.

So I have attempted, by listing them in that

manner, to take a conservative view of what "the

institution of legal proceedings" is, realizing

that, as Their Honours said in the Court of Appeal

of Vernazza's case, there is certainly room for

argument about what, between the two extremes that

Their Lordships dealt with, is "the institution of

legal proceedings".

There is only one other judgment that I should

refer Your Honour to, because, looking at

Mr Justice Walsh's decision you will see a

Full Court of this Court, which is unreported,

reference to it, and that is the judgment of the

dealing with the status of the rule. It is an

was the Chief Justice Sir Garfield Barwick -	unreported judgment of 5 October 1971 and the Court
perhaps I can hand this to Your Honour.	It has

handwritten on it that all the other members of the
Court agreed with the Chief Justice without having

the separate pages. It is called Bienvenu v

Hutchison, 5 October 1971 and the Full Court was

there dealing with a motion by the applicant

seeking an order dismissing a notice of motion by

pursuant to Order 63 rule 6, and various grounds the respondent, the Crown Solicitor, for an order

were referred toz unwarranted delays dealt with in

the middle of page 1, and then, Your Honour, in the
middle of page 2, point 5 of the page, the
applicant then raises the question of the validity

of Order 63 rule 6(1) - - -

HIS HONOUR& Was the rule then in the same form as it is at

the present time?

MR ROBERTSON:  Yes. She does so in various ways in three

separate grounds:

In my opinion -

Skyring(l3) 59 26/6/92

says His Honour -

there is no substance in this challenge to the

validity of the rule; indeed, the court would

be able to protect itself in its inherent

persistently brought applications before it	jurisdiction in any case if a litigant
which were vexatious and unmeritorious. The
rule is made in pursuance of the rule-making
power of the court which is ample to sustain
it and not in conflict with any constitutional
or statutory provision. In my opinion the
rule is valid.

And then the other members of the Court,

Mr Justice McTiernan, Mr Justice Menzies,

Mr Justice Windeyer and Mr Justice Owen agreed.

HIS HONOUR:  I am just wondering how that decision tied in,

Mr Robertson, with another decision of this Court,

the name of which escapes me for the moment.	It
was Inglis, was it not?

MR ROBERTSON:	Yes, I was going to - seeing that there had been a reference to the inherent power in this
judgment, I thought for completeness I should take
Your Honour to - - -
HIS HONOUR:	Was a similar or a different view taken of

inherent power in Inglis' case?

MR ROBERTSON: Well, there, the real question was whether

the Commonwealth Trading Bank was within the rule

and the Court said, no. But the Court said that it
did have inherent power, but limited to the case of

actions pending in the Court.

HIS HONOUR: That is a different matter, is it not?

MR ROBERTSON: Yes, whereas the Court here, perhaps rather

broadly, talks about a litigant persistently

bringing applications before it and perhaps there

is some ambiguity about whether that means

applications - - -

HIS HONOUR: Within the ambit of one particular proceeding

that is on foot, or more generally.

MR ROBERTSON: 

Yes.

HIS HONOUR: 

Is there anything said in Inglis about the

possible invalidity of a rule or a limitation on
inherent jurisdiction in respect of a power to

prevent a litigant from bringing further
proceedings?

Skyring(l3) 60 26/6/92

MR ROBERTSON:  I do not think the matter of, from my

recollection, the -

HIS HONOUR:	I thought there was.
MR ROBERTSON:	I will hand Your Honour a copy of the

judgment, 130 CLR 311 - - -

HIS HONOUR:  If you look at the headnote, the first

paragraph reads:

restrain a person from commencing new A court has no inherent jurisdiction to

proceedings without leave of the court.

MR ROBERTSON:  Yes, and then Their Honours went on to say proceedings was not displaced by Order 63 rule 6. that the inherent jurisdiction to deal with pending

HIS HONOUR:  No.

It perhaps leaves unanswered whether there to bring any proceedings for the future. is an inherent jurisdiction to order a litigant not

MR ROBERTSON:  Yes. One could gather from the way

Their Honours approached it that they would have

been of a view that there would not exist such an

inherent power.

HIS HONOUR:  Well it would be a pretty wide power to find it

in the inherent jurisdiction of the Court, would it

not?

MR ROBERTSON:  Yes. I will take Your Honour to the relevant

passages. It is - - -

HIS HONOUR:  But you are not relying upon inherent

jurisdiction here - .

MR ROBERTSON:  No, quite so.

HIS HONOUR:  I only ask you that, really, to pave the way

for a further question, and that is the authority

for a rule such as Order 63 rule 6?

MR ROBERTSON: Yes, in terms of the rule-making power?

HIS HONOUR:  In terms of the statutory background.

MR ROBERTSON:  Yes. It derives, Your Honour, from the

general source of rule-making power, in my

submission, which is section 86 of the Judiciary

Act and section 86 begins:

The Justices of the High Court •.... may make Rules of Court necessary or convenient to

be made for carrying into effect the

provisions of this Act or so much of the

Skyring(l3) 61 26/6/92

provisions of any other Act as confers

the practice or procedure of the High Court, jurisdiction on the High Court or relates to

and in particular for the following matters,

that is to say:-

(h) Generally regulating all matters of

practice and procedure in the High Court.

And perhaps the importance, Your Honour, in the - I

said it probably was not important in the present

instance, but on this aspect of the case it would

be, that the House of Lords in the Vernazza case,

dealing with whether an amendment affected a

substantive right or not, said that given the

nature of the control imposed by an order that a

person be declared a vexatious litigant, that was a

matter of procedure rather than substance because

it meant that the right to approach the court was

affected in a procedural way, and in that sense it

can be seen that both by reference to the approach

of the Full Court in the Bienvenu matter and at the
other end, by the House of Lords in Vernazza, that

these matters are regarded as procedural matters

which can be regulated by rules under section 86.

HIS HONOUR: Yes, I suppose it is necessary to have regard

to the form of order or the operation of the rule

which is that proceedings are not commenced without

leave. It is not a complete bar.

MR ROBERTSON:	Yes, that is so.
HIS HONOUR:	On the other hand it does not spell out the

circumstances in which leave might be granted

rather in the way that the earlier rule makes it

necessary to obtain the leave of the Court where

the Registrar is of the opinion that the process

sought to be instituted is vexatious, or

oppressive.

MR ROBERTSON:  It does so to this limited extent,

Your Honour, that the Justice has to be satisfied

that the proceedings are not an abuse of process

and that there is a prima facie grant. So it gives

some indication of the consideration. So, to put

it in the positive, the Justice - I would not put

it as high as would be required to grant leave,

but where satisfied that there was not an abuse of
process and there was a prima facie ground for the
proceeding, then one assumes that leave would be

granted in either all or most cases.

HIS HONOUR:  Generally in the States this type of regulation

is done by statute, is it not? By "States", I mean

our own States.

Skyring(l3) 62 26/6/92

MR ROBERTSON:  Yes. Certainly, I think Their Honours in -

and this is one of the features of the Commonwealth

Trading Bank case, 131 CLR, is that Their Honours go through the history of the matter and at

page 315 refer to the first statute, which is the

English statute of 1896, and at page 315 refer, in

the middle of the page, to the Vexatious Actions

Act of 1896.

HIS HONOUR:  But is there any instance to which you can

direct me within Australia where a comparable

provision derives from the rules rather than

statute?

MR ROBERTSON: In Queensland, Your Honour, as appears from

the foot of page 316, the Supreme Court Rules were

amended in 1943. Did Your Honour see at the foot

of that page - - -?

HIS HONOUR:  Yes, I picked that up.

MR ROBERTSON:  By inserting Order 60. Whether it is still

the same in Queensland, I am not aware.

HIS HONOUR:  You would need to marry it against the relevant

statutory provision too.

MR ROBERTSON:  Yes, but I do not think - so far as

Their Honours mentioned other States, they mention

Victoria where it was section 33 of the Supreme

Court Act, and Western Australia has a statute, The

Vexatious Proceedings Restriction Act.

HIS HONOUR: Yes.

MR ROBERTSON: And South Australia has section 39 of the

Supreme Court Act. So, Their Honours do not refer

to the position in Tasmania.

HIS HONOUR: Well, in any event, you put the authority or

the power to make the rule in terms of section 86

and paragraph (h)?

MR ROBERTSON: Well, the general opening words -

HIS HONOUR: Or more broadly, and then paragraph (h)?

MR ROBERTSON: Yes, the opening words which says

"Jurisdiction on the High Court" et cetera, or

"relates to the practice or procedure of the

High Court", then there is some specific instances,

and then it says, or any other, or "Generally

regulating all matters of practice and procedure",

and of course, Your Honour, I rely both on the

Full Court decision in the Bienvenu matter and the

approach taken by the House of Lords in the

Skyring(l3) 63 26/6/92

Vernazza matter. I have not taken Your Honour

through that in detail.

HIS HONOUR: Yes, thank you.

MR ROBERTSON:	So those are the submissions for the applicant, Your Honour.
HIS HONOUR:	Mr Skyring, let me just raise a couple of matters with you first.
MR SKYRING:	Yes.
HIS HONOUR:	You have a document that is headed "notice of

motion".

MR SKYRING:  Yes. Just to put you briefly in the picture,

Your Honour, there were two - - -

HIS HONOUR: Wait a moment; you have two documents. One

seeks to strike out the present - - -

MR SKYRING: That was my immediate response to the

documentation that we have just been talking -

HIS HONOUR: Well, we can put that to one side, because if the application succeeds then clearly your motion

must fail, and if the application fails, you do not

need your motion.

MR SKYRING: Anyway, my thought was if you could put that

notice of motion aside, but it was the affidavit

itself in which I did provide some details in that

which were not given in the documentation we have

just been speaking about - - -

HIS HONOUR: Well,. I will consider that in a moment, but I

which does seem to have been filed, but at any rate	am not - the motion that I have just referred to
has no significance for the reasons that I have
motion -
just given. Now there is another notice of

MR SKYRING: Yes, there was a second one -

HIS HONOUR:  - - - to do with a bankruptcy proceeding.

MR SKYRING: Basically, there is the - - -

HIS HONOUR:  Now, just a moment, I do not want to hear from you as to the details of this motion. On the face

of it, it appears to have nothing to do with what I

am dealing with at the moment.

MR SKYRING: Well, at the end of the affidavit which I put

in in support of the first one, which you did

mention, I did mention that there were proceedings

Skyring(l3) 64 26/6/92

under way in the Federal Court, which were heard on

8 May, which was after I had written that

affidavit, and it seemed to me that in those

proceedings, again, which are continuing on from

what we have just been talking about, there were

some fairly crucial points - or indeed, there is a

complete argument given which is highly pertinent

to what has been going on here now.

HIS HONOUR: Well, let us just take it step by step. The

notice of motion itself seeks an annulment of

bankruptcy proceedings. Now, that has no relevance

to the present application and I do not propose to

deal with it as part of this application, or

indeed, to deal with it at all today.

MR SKYRING:  Okay. Well my purpose in putting that lot in,

Your Honour, was that in the documentation which

goes with the actual formal notice, there is a good

deal of information provided.

HIS HONOUR: Well, that is a very unsatisfactory way of

doing it, but it gives rise to my next question to

you, or the next matter I want to raise with you as

a preliminary - - -

MR SKYRING: Yes.

HIS HONOUR:  - - - and that is that I want you to understand

what the proceedings are about, which is why I have

suggested to Mr Robertson that he go into some

detail in the course of his opening address. This

is not the arena for recanvassing the arguments

that you have canvassed in so many applications

before and I want you to be quite clear about that.

MR SKYRING: -:I see the broad thrust of what you have been

about, Your Honour.

HIS HONOUR:	I do not want you not only coming through the front door, but not trying to come through the back
door as well on that.

MR SKYRING:  I take your point, Your Honour. Basically,

what I would like to do, if I may, Your Honour, was

been gone through in the presentation that we have to take up on the points of law which have just

heard since the survey of my documentation was, in

fact, completed.

HIS HONOUR:  Yes, certainly.

MR SKYRING: Right now, if I could go through the

authorities which had, in fact been cited, although

there are other items in those which I think are

worthy of mention. Now, firstly in this matter of

Skyring(l3) 65 26/6/92

the second page, page 352, at the second line: Chaffers on the second page, right at the top of

there cannot be any doubt that these

proceedings are vexatious and frivolous in the

absence of any explanation given, if any
explanation could be given, and none has been

given •

Now, this seems to me to go to the heart of what,

in fact, constitutes - is tied up with this

"reasonable ground" requirement within the rules,

as I understand it. Now, might I just comment that	I did have a chance to read through all of this
documentation which I was given yesterday in the adjournment overnight, and the thing which comes through to me from all of the actions that have
been cited, where I believe my action is different, is tied up partly with procedure and also the
nature of the action brought. Now, if I could just
Now, on that effort in Re Langton, which was one skate through vecy quickly on the judgment cited.
mentioned, at page 578, where the matter went over on appeal, which is on the second page of the documentation:

It is perfectly clear this this litigant has

been habitually and persistently and without

any reasonable -

HIS HONOUR:	I am sorcy, where are you looking at?
MR SKYRING:	On that page 578, between F and G, half-way

down the page on the left-hand side, it is under

"Sellers LJ", the bit which is indented.

HIS HONOUR: Yes. ..

MR SKYRING:

been habitually and persistently and without	It is perfectly clear that this litigant has
any reasonable ground instituting vexatious
legal proceedings in an attempt to re-litigate
the matter, which was fully dealt with in the
first action.

Now, what is involved in that effort there, fully dealt with, involves what is referred to in another

action which I was given documentation on, namely, touch on in that other documentation, but it is to final judgment. Now, this was a matter which I

determining the rights of the parties from which	do with final judgment in the judicial sense of
action may be subsequently taken. If that is not
done on the first instance, then it is generally
hoped that that is done on appeal. Now, in my

Skyring(l3) 66 26/6/92

case, and this was pointed up in the course of the

presentation as it was gone through, I have

contended consistently through this that a final

judgment has never been given.

HIS HONOUR:	I know you have contended that, but with equal force court after court has said that the points
that you want to agitate about the operation of
section 115 of the Constitution, and the operation
of the Currency Act have been determined.
MR SKYRING:	But have they been properly determined and this

comes back to - this is the heart of the matter,

Your Honour.

HIS HONOUR: Well, in a way it might be, Mr Skyring, but the

have to be regarded; they are judgments of single judgments on their face - and that is the way they

Justices of this Court; they are judgments of	Full Courts of this Court - on countless occasions
have ruled against you on these matters.

MR SKYRING:  Okay. Well now, we come back to the - if we

take the point with which the previous submission

concluded. What actually constitutes "institution

of proceedings", and indeed although we have just	had an exercise gone through that would appear that
there 12 or 14, I think it was, separate actions,
the matter can be looked at that way. There is
another matter, there is another way of looking at
the matter completely, which has to do with
execution of processing the Court itself. Now, I
would draw your attention to the Registrar's
affidavit, namely item 3, wherein he said,
following on from item 2 which was my notice of appeal basically seeking to appeal the matter from
the Federal Court back in 1984, and it was stated
there that "The motion •••.. was not proceeded with".
Now it is my submission that that is not, in fact,
a correct statement of the situation.

Now, I go into some detail on this particular

point in my documentation, which I had put, under

cover of the - - -

HIS HONOUR: Well it should not need too much documentation.

I mean, it either was or it was not.

MR SKYRING:  No, the fact of the matter was, that I

sought - it became a matter of how the appeal

would, in fact, actually be dealt with; who would

argue the case. Now, what in fact happened, and

the documentation is filed to that effect and I

have included it in my affidavit, was that when the

Appeal Court came up here in the June 1984 I had

put that appeal in and the matter came up then of

how this would actually be presented, and I had not

Skyring(l3) 67 26/6/92

been advised as to whether I would be listed in

that particular hearing and I tackled Mr Jones on

that particular point. He cited to me Hass's case,

and in the course of some discussions up on the

fifth floor, as it then was, he made the point to

me that even if you were a barrister you could

still not argue your case in this situation.

Now, what I did then was to seek - I did in fact file some documentation in the Registry,

coupled with the requisite $50 fee, seeking to

make - for leave to be granted for me to argue the

case in person. Now, what happened was that I was

to get the documentation back after the Court left
town with some annotations in the margin of the

documentation as I had filed them in my affidavit,

which basically took issue with a point that I had

made, namely that there were some absurdities in

the present practice which the Chief Justice, who

signed the thing, took a very dim view of. Now

that documentation is not listed in any of that

effort that you have got there that I could see.

HIS HONOUR:  It does not make any difference, does it,

really, because - - -

MR SKYRING: Yes, well, the fact of the matter - I was

basically denied a hearing.

HIS HONOUR:	- - - what that amounts to is that whatever argument you sought to raise by the notice .of
appeal did not proceed for whatever reason, so you
did not at that stage have any sort of ruling
against you. The rulings against you began
thereafter, did they not?

MR SKYRING: · Okay, but what - complementary with this, I had

put that matter on the table as formal process to

basically bring the matter forward from the Federal

Court. Now, this is not irrelevant in view of the

comment that was made in another of the references that were given, the Attorney-General v Jones from	the Weekly Law Reports - I think that was one that
was given to me. I presume you have been given a
copy.

HIS HONOUR:	It was not a case cited by Mr Robertson.
MR SKYRING:	It was given in the documentation which I was

given by the -

HIS HONOUR: Well it is available, no doubt, if you wish to

refer to it.

MR SKYRING: Could you hand it up just so - - -

MR ROBERTSON:  Yes, there is a photocopy for Your Honour.

Skyring(l3) 68 26/6/92

MR SKYRING:  There was a couple of pages which had the tops

and bottoms clipped off. It is on page 563, as

annotated on the right-hand side of the page, about

half-way down. Now, this was going through the

cases that were brought there:

The fifth and last issue of law arose out

of Mr Jones' wish to challenge the conclusion
of various judges in the underlying
proceedings that this conduct in those
particular proceedings had been vexatious or

had involved an abuse of the process of the

court. We ruled that he was not free to do

so. If any such conclusion was, or was

thought by Mr Jones to be erroneous, the

remedy was to appeal in those proceedings or,

where it was said that the judgment was

vitiated by the fraud of other parties, to
take appropriate steps to have the judgment

set aside. But if that was not done - Now, in my case, I would submit that I did, in

fact, as that relevant bit seems to apply, seeks to

do that, to put those processes in train. Now,

because of the nature of the matters I was raising

and the way that I had brought them forward,

coupled with my own background and standing, and

bear in mind this was 1984, I had come out of the

blue as a citizen virtually from nowhere; I was

working on the basis of this statement by

Sir Ivor Jennings, which has formed the whole basis

for one complete leg of this argument. I was an

unknown quantity. It behove the courts not to put

in train - and I go along completely with your

effort about controlling your proceedings. I was

an unknown quantity, whether I had a sound argument

or not was not to be known. If, in fact I did,

then I certainly should be able to bring it down,

if not immediately, over a period of time.

HIS HONOUR: Well, Mr Skyring, what is put against you is

that indeed that is just what you did do, is

proceed to raise this argument on countless

occasions before the Court.

MR SKYRING: All right, but I am coming back to this initial

effort of the original judgment by Deane and the

judgment of the Full Court which as agreed are the

crucial items in this whole thing.	I do not
disagree with that.

HIS HONOUR: Well, they are not the only -

MR SKYRING:  No, but those are the initial judgments from

which exception is taken.

HIS HONOUR: All right.

Skyring(l3) 69 26/6/92

MR SKYRING: It is - as I read the rules, I was allowed the

first two bites effectively. After that the plot

got thick, in short. Now my argument is, and it

was stated in my presentation as I have put it,

there was - due process as I understand it, having

read Sir Ivor Jennings, was not properly carried

out. The bit which attention has been focused on -

let us come at it this way - which is the latter

matters out of context. part of the judgment, in fact, I believe, takes

HIS HONOUR:  Yes, but I think you are losing sight of what

the application is all about and, as I said to you

at the beginning, it is not a recanvassing of all

your issues.

MR SKYRING:  No, no. I am talking procedure of the Court

now.

HIS HONOUR: Well, you are getting very close to, I think,

infringing the ground rules, Mr Skyring,

because - - -

MR SKYRING: In what respect?

HIS HONOUR: Whatever complaint you may have about the

matter of the Full Court, there have been a number earlier judgment of Mr Justice Deane, or for that

of occasions since on which you have sought to air

the same problem.

MR SKYRING:	Okay.
HIS HONOUR:	And indeed, you have aired it on a number of

occasions.

MR SKYRING: ·All right. If I can come at the problem from a

different angle, because this seems to be - it has

all got to do with reasonableness of the action.

There are two facets it seems to me that this whole

thing focuses on if one takes the wording of the

okay, I am certainly back here quite a bit, no	rule which has been cited. "Frequently": well	argument about that bit. "Without reasonable
cause" and "vexatious", now the crucial item is here this "reasonable cause": what in fact
constitutes "reasonable cause"? Now the facet
which has been mentioned in all the cases which
may put it that way, not following through a have been cited is a certain disjointedness, if I
particular argument. That is the characteristic of
all the cases which is cited. I would submit that
that does not apply in this case of mine. What I
have done is to lock onto a problem and followed
through a technical argument, having been given, as
I see it, a series of interlocutory judgments

Skyring(l3) 70 26/6/92

seeking to deal with three interrelated facets of a

major problem.

Now, the problem I am up against is that,

okay, I have my perception of the world about me,

others have their perception of the world, and we

get into a very interesting area of psychology.

What constitutes "reasonable"? It becomes the

innate capabilities of a person, vis a vis the

general background norm, if I may put it that way.

HIS HONOUR: Well, I think what the authorities that have

been referred to would say to you is that

"reasonableness" in a case such as this is to be
assessed having regard to the applications

themselves. This is not a case in which sometimes

the courts are faced with where a person brings

actions against a whole range of people~

neighbours, friends, enemies and so on. This is a
case in which, although there are different parties

involved, essentially you have been trying to air

the same questions.

MR SKYRING:  Okay, one can come at it that way, but what is

also happening in the process - - -

HIS HONOUR:  I am not suggesting to you that it follows that

the application necessarily succeeds. All I am

suggesting to you is that there is a particular

basis upon which you should approach the

application. ·

MR SKYRING: All right, okay. Well, I am trying to get your

wavelength and make that point that there is

another way to look at things and I would put the

point that, indeed, the whole presentation of mine

has characteristics which are different from the

others brought and, indeed, are such that this rule

cannot properly be applied in this case.

HIS HONOUR: All right, well, can you just tell me	succinctly why you say that the rule is not
applicable or, at any event, why you say that the
terms of the rule have not been met.

MR SKYRING: All right. Okay, well, if I can come back to

this judgment which was cited, of Hutchison v	Bienvenu. It was quite interesting where counsel
stopped at the top of page 13, if I work
backwards - actually it starts on the previous page:

The proceedings in par (5) ...•. have been

described already and it has pointed out that

they included two sets of allegations. I am

of opinion that in so far as the action sought

to litigate again contentions of law already

Skyring(l3) 71 26/6/92

precluded by previous proceedings the action
could be regarded as vexatious. But it was

not limited to that and it did attempt, I

think, to raise matters which possibly the

respondent may have been entitled to raise in

appropriate proceedings properly framed.

Although those attempts were ineffectual and

it was held that the action was misconceived

in that this Court had no jurisdiction to

entertain it, I think that I should leave this

proceeding out of account in this application.

Now, if you go back to what item (S) was about, and

that is given on page 9, down near the bottom:

The Court left open the questions whether this

Court has jurisdiction to entertain appropriate proceedings to set aside an order
of the Court alleged to have been obtained by

fraud and whether in a properly framed

proceeding a challenge to the application of

the Bankruptcy Act to an inter-State trader

would raise a question involving the

interpretation of the Constitution.

Now, the crucial item here in respect of this is a

matter of fraud, which I have touched upon in my

previous proceedings. Now, if we go back to what

Deane originally said - - -

HIS HONOUR: Justice Deane.

MR SKYRING:  I am sorry to His Honour - "I am not

to say that I have not an argument, and indeed I was taken to task on this in 1986 for not having

persuaded". The same wording was used by the

got my act together in so many words - that the

Court has not got time to deal with ill-prepared
cases brought without precision. I take the point,

but again I would note in support of that, I
brought this matter on my own.	I sought legal aid
right from the beginning on this.	I have never
been able to get it.	I have therefore been thrust

back on my own resources, which it seemed to me

dealt with and as was cited in the previous there was a major problem here which needed to be

documentation and was cited in this Court, I have
come to the conclusion that others seem unable to
cope with the matters I have raised.

HIS HONOUR: Well, that may be. That may be your view of

things.

MR SKYRING:  That is the real problem which has to be dealt

with.

Skyring(l3) 72 26/6/92

HIS HONOUR: Well, it is not a problem I am going to deal

with this afternoon.

MR SKYRING: Well, the question is this, whether that is

indeed a proper approach to be taken on your - - -

HIS HONOUR:  It was put to me at the beginning of this

application yesterday, and I have not checked

Mr Robertson's figures, but he said that there

were 22 applications to the Court and 11 judgments.

MR SKYRING: Right.

HIS HONOUR:	Now, let us just forget the applications for a moment. There have been 11 judgments of this Court	dealing with the questions that you have sought to
litigate.

MR SKYRING:	Okay, if you look closely -
HIS HONOUR:	Now, you can hardly say you have not had your

day in court.

MR SKYRING:	Yes, but there is a matter whether appropriate action has been taken despite all that.	Now, if
I - - -

HIS HONOUR: Well, you may - I can understand that you may

wish to complain about the judgments that have been given, but they are the judgments of this Court from which no further appeal lies.

MR SKYRING:  Okay. Well, let me put this proposition to

you. The broad effort which is taken which I must

conclude from the general thrust of what you are

saying, in essence, is that what has been done is

proper and correct in all respects, and I mean that

in the broadest sense, in respect of - - -

HIS HONOUR: Well, it is not even necessary to approach the

matter in that way, although that is the way,

clearly, in which I would approach it. The

question is whether, given the history of this

matter - when I say "this matter", I mean all the

matters that are before the Court - whether it is

proper for me to conclude that you have frequently

and without reasonable ground instituted vexatious

legal proceedings, and if I do reach that

conclusion, whether it then would be appropriate

for me to make an order in terms of the rule.

MR SKYRING: All right, okay. Well, that is the point which

is in issue, but bear in mind - okay, you are

taking me, against, if I may use the term, the

system. That is how I sort of see it as an

individual. Now, the whole purpose of the

operation of the judicial system in its entirety,

Skyring(l3) 73 26/6/92

because that is really what is in issue here, is

the maintenance of law and order and to conduct its

affairs, in effect that the constraint which is

applied on the legislature itself, that laws by the

Commonwealth shall be made for the peace, order and

good government of the Commonwealth. In so far as

this Court is involved in the interpretation of

same, that constraint necessarily must apply to it

also. If that is not so, we have an utter charade,

in which case the whole place, literally in a legal

sense, is bankrupt and it ought to be declared as

such. That is the sort of level which comes in on

this.

HIS HONOUR:	I hear what you say, Mr Skyring.
MR SKYRING:	Okay now, pursuant to this, on that case of

Attorney-General v Jones, in that UK case to which

I just referred you - right down at the bottom of

the page.

HIS HONOUR: Which page?

MR SKYRING:  Page 563, which was below the bit to which I

drew your attention before:

Any court is very properly reluctant to make

such an order -

this is the order which you have just cited -

and the circumstances in which it becomes

necessary to do so are always sad. The

present case is no exception, since Mr Jones,

who was a member of the Bar, has demonstrated

a vast amount of misplaced industry and a very

considerable knowledge of the law which is

wholly wasted because of his complete lack of

judgment and of any understanding of the

purpose of the law which is to do justice.

Now, it is at that level that I made my previous
assertion.	Now, the relevant bit which comes out

of all this, which comes back to that original

judgment by Justice Deane, there is no

constitutional bar to the Feds making paper money

legal tender, nor to the - that the Currency Act

overrules the Reserve Bank Act or vice versa. Now,

that was stated without judgment, without reasons

ever having been given. Now, if one is to have

coherent action, one needs to have reasons

substantiating that claim. This is required under

Order 72 rule 4, as it has been drawn to my

attention, of the High Court Rules. It can state

an opinion, but reasons must - if they are not

given at the time, they need to be given to the

Registrar in open court. It is my submission that

Skyring(l3) 74 26/6/92

the reasons substantiating his assertion have never

ever been given. Indeed, I would take it further,

that they cannot be given because that statement of

the situation itself is, in fact, wrong in law.

Now, what has happened is that all subsequent

actions are based on a fundamentally flawed

premise, which is what I have stated consistently

through these proceedings. Now - - -

HIS HONOUR: All right, let that be accepted for the

moment for the purpose of your argument that

MR SKYRING: Right, okay, but the problem is what to

do - well, this then makes it extremely difficult

for me in respect of how I discharge monetary

debts, which others say that they are making

right - - -

HIS HONOUR:  When I say let it be accepted, let it be

accepted that that is your view of the judgments that have been delivered.

MR SKYRING:  Right, okay. Now, to back up my contention.

If we work this in the manner of proving certain somewhat difficult premises in geometry, there is a

reductio ad absurdum-type proof which is used,

wherein a statement is made as to what is believed

to be the case. One then follows through a series of logical arguments, and one arrives at an answer

at the end. Now, if the original premise is true,

then what comes out at the end is a rational

coherent conclusion.

Now, the point I make is that if in fact

Justice Deane is correct in his statement, then

would the Court please explain to me in detail how

it is that we can have a situation which is covered

in the documentation which I provided with my
associated affidavit and indeed was the basis of

the matter which I brought before the Court of

Disputed Returns because of the manner in which I

made my payment of that nomination fee, that we

have two scales of values, apparently, within this

nation differing by a factor of almost six.	Now
what I did in that - - -

HIS HONOUR:	Mr Skyring, I am not going to get involved in particular cases that you participated in.
MR SKYRING:	No, what I am asking is a process of reason and

logic which is vitally tied up with the operation

of the Court rules, indeed, of the entire

administrative system of this nation, that there is

a very simple fact that we do not have money in an

unambiguous form.	Now, this has caused me dire
problems - - -

Skyring(l3) 75 26/6/92

HIS HONOUR:  Now, you have drifted right from the

application.

MR SKYRING:  No, but I am saying why it is relevant. I have

had action taken against me for bankruptcy,

wrongfully instituted on the basis that it is

required under the Bankruptcy Act that a final

judgment shall have been given for bankruptcy
proceedings to have been instituted. It all came

about because I jacked up on the form of payment in

which that taxation payment was to be made. I

sought to do it, based on what Justice MacPherson

originally stated back in 1983 - - -

HIS HONOUR: Well, I understand. Your proposition seems to have been from the beginning that the Commonwealth has no power to issue notes by way of - - -

MR SKYRING:	As legal tender.
HIS HONOUR:	As legal tender.

MR SKYRING: Promissory notes: no argument, no argument

about that.

HIS HONOURs Right, as legal tender. That is a view that

has been rejected time and time and time again.

MR SKYRING:  But has it been properly rejected?

HIS HONOUR: Well, that is another matter, Mr Skyring.

MR SKYRING:  But that is the point at issue. This comes

back to the fundamental operation of this very

Court.

HIS HONOURS I said to you at the beginning, I am not going

to allow this application to become converted into

a recanvassing of questions - - -

MR SKYRING:	No, I am not. I am specifically arguing - number of applications. There are a number of
HIS HONOURs	The record speaks for itself. There are a

judgments in which these matters are canvassed.

Now, that is the starting point for this

application.

MR SKYRING:  Okay right, but I am picking. you up on the point that was made in argument by counsel. There

was the initial judgments by Justice Deane in 1985

and the determination given by the Full Court again

later that year. Now, the presumption that is made

in these is that those are final judgments

determining the rights of the parties. It is my

submission that nothing of the kind was ever given

in those judgments - -

Skyring(l3) 76 26/6/92

HIS HONOUR: Well, I understand the submission.

MR SKYRING:  - - - and I would defy you to show me where the

rights of the parties are defined from the wording

of those judgments. I defy you.

HIS HONOUR: Well, Mr Skyring, that is not going to get you

anywhere.

MR SKYRING: Well, but this is the point that I am up

against, Your Honour.	It all has to do with what
constitutes "reasonable".	Now, I would suggest I

am a reasonable man. The problem, in so far as

there is one, as I understand, having thought about

this, it is a cultural problem. Now, I have been

brought up in the scientific tradition which is

markedly different from what I might refer to as

the legal tradition. Now, the point was made to me

very sharply at university, and I have in fact

summarize the situation, if I can read my notes followed it through, and in short, if I could just

here, the scientific approach which has formed the

basis of this action, and if you look at it this

way you will see that there was a coherent thread

right through all of my actions seeking to resolve

one very specific problem which the authorities

either cannot or will not, for whatever reason I do

not know, fairly and squarely address.

Now, my whole approach to the problem is based

on the logical approach of science as opposed to the authoritarian of the legal, ie, a contention

must stand by application of a logical reasoning

process, be it deductive or inductive, of observed

facts accurately stated in words which are given

their ordinary meaning.

HIS HONOUR:  Mr Skyring, I am not going to hear you on this

aspect. I do not think it has anything to do with

the application.

MR SKYRING:  I would submit that it is highly relevant to the argument of -

HIS HONOUR: Well, you may submit, but I do not accept the

submission.

MR SKYRING:  Okay, well, the question arises by doing so,

Your Honour, whether or not you are not on one

level violating your oath - - -

HIS HONOUR: Well, that is a risk I am prepared to take, Mr

Skyring. Now, let us get on with the application

itself. You have had considerable time to develop

your argument. I am prepared to hear you so long

as your submissions are addressed to the point in

hand. I am not prepared to spend time sitting here

Skyring(l3) 77 26/6/92

listening to submissions that, however you describe

them, in the end amount to seeking to reargue the

issues that have been before the Court before.

MR SKYRING:	No, I am arguing process, Your Honour.
HIS HONOUR:	I know you are. You say you are, but in effect that is what you are seeking to do.

MR SKYRING:  No. The fact of the matter is that the Court

has not discharged its duties properly.

HIS HONOUR:  I understand you say that.

MR SKYRING: Right, okay. Well, that becomes competence of

the Court. Why I say it has not discharged its

duties properly is that we are left with this

enormous conflict in the statutes, such that I

cannot discharge the duties imposed on me properly.

HIS HONOUR:  I am not going to hear you on that, Mr Skyring.

Now - - -

MR SKYRING: Well, I object to that approach, Your Honour.

HIS HONOUR: Well, that is - you may well object. Direct

your submissions, if you will, to the application

which asserts that you have frequently and without

reasonable ground instituted legal proceedings.

The argument that you have done so without

reasonable ground, as I understand Mr Robertson's

application, is that the unreasonableness stems

from the fact that these issues have been

determined by the Court before. Now, I know you

say they have not been determined to your

satisfaction - - -

MR SKYRING:	It is not my satisfaction, Your Honour.
HIS HONOUR:	But you have been through the gamut of

countless applications in which you have sought to

raise and have raised the same questions and they

have all been resolved -

MR SKYRING: They have not been - - -

HIS HONOUR:	Maybe not to your satisfaction.
MR SKYRING:	I object to that, Your Honour.  I object

vehemently to that.

HIS HONOUR: Well, you may do so, Mr Skyring.

MR SKYRING: 

The question - look, you tell me, in terms of

Justice MacPherson's original judgment, now,
actually there are two levels to this problem - - -

Skyring(l3) 78 26/6/92

HIS HONOUR:  Mr Skyring, I am running out of patience, I am

afraid, because it seems to be important that we

confine the argument to the scope of the

application - - -

MR SKYRING: Well, okay, the application is for - the order

wording, and that is what I am coming in on - the	called into question is - just to get back to the
"frequently" bit we can leave out - "without reasonable ground has instituted vexatious legal proceedings".

HIS HONOUR: Well, I understand your argument which, I

think, is that although there have been frequent

proceedings and although rulings have been given by

the Court, they are not rulings that, in your

submission, satisfactorily dispose of the questions

that you have raised from time to time.

MR SKYRING:  No, because, in fact, if they - - -

HIS HONOUR: Well, I understand that.

MR SKYRING:  Okay, all right. Well, that is the point in

issue.

HIS HONOUR: Right.

MR SKYRING:  So really what the argument is swinging on is

an interpretation of what actually constitutes

"reasonable", and indeed this whole matter of what

are deemed to be vexatious proceedings. Now, in

the earlier matter that was mentioned, which I had,

in fact, cited in my documentation as put in, was

wherein the point was made that if a matter had	the judgment in Purley v The Metropolitan Bank,
been determined, which again involves this notion
of being finally determined in the sense that the rights of the parties are given, and the place may
proceed on thereafter in a proper and lawful
manner, this has to be associated with the idea of
all of these proceedings, in all of these actions, a final judgment. Now, that comes right through in
that that is an essential requirement.

HIS HONOUR: Well, your argument is that these judgments	have not finally resolved - - -
MR SKYRING:	No, all they were was interlocutories -

HIS HONOUR: All right, I understand that argument. You do

not have to develop it.

MR SKYRING: All right. Well, on that basis then, it seems

to me that - well now, there was a point that was

made - - -

Skyring(l3) 79 26/6/92

HIS HONOUR:  When I say I understand it, I think you must

also understand that the record must speak for

itself.

MR SKYRING:  Okay, what it shows is a very persistent action

seeking to right a wrong which the authorities of

themselves are not prepared to come to grips with.

That is what the record shows, which could only be

of - - -

HIS HONOUR:  Now, do you have any further arguments that you

wish to address to me?

MR SKYRING: Well, yes, Your Honour. If I could just -	coming in on the cases which were given to me,
which had been cited. On that High Court judgment
in Commonwealth Trading Bank v Inglis, that was
mentioned, the construction to be put on
"instituted" or "begin" which is associated with
this matter of institution of proceedings.
HIS HONOUR:	Yes.

MR SKYRING: About half-way down on the final page:

The words "other proceeding in the Court" at

the end of r 6(1) should be construed, in our

opinion, as referring to an original

proceeding, rather than to an interlocutory

proceeding in a matter which has already been

initiated.

Now, my argument in this entire action is that the

action was initiated by virtue of my appeal, which

I brought forward and was mentioned in item 2 of

the Registrar's affidavit. Now, because of the complexities of the issue which I had raised in

that, it was inappropriate at that time to proceed

with it in the extremely concise form that it was

given. At the same time I brought a parallel

action which, in fact, has been proceeded with,

which got me on to the prerogative writs, which	allowed all facets of the problem to be addressed
in a proper manner, because the manner in issue
here is indeed the Crown's prerogatives, the vital
ones: maintenance of law and order, which is
number one, and two is creation of money.

Now, my assessment of the situation is, and

indeed, I have stated this in the documents and, if

you look at the judgments themselves, the wording

of them, you will see that they are interlocutory,

helping to define the issue, to get it into a form

which is tractable and which can be readily dealt

with by the Court and to give a coherent answer as

will allow all rights to be properly disposed of.

Skyring(l3) 80 26/6/92

HIS HONOUR:  Yes, well, I understand that.

MR SKYRING: All right, okay. Well, if we carry on then.

Now, there was another one, if I can find it here.

I am a little bit disorganized. In the Supreme

Court in 1988 - this was Justice Roden's judgment

in the action that was brought against Wentworth

for vexatious action in the New South Wales

Supreme Court, yes, that is right,

Attorney-General v Wentworth - I will draw your

attention to - six pages in - it starts off part

way down the page - - -

HIS HONOUR:  The pages are numbered in the top right-hand

column, are they not?

MR SKYRING:  Yes. I have got mine stapled together, I must

have caught them under the stapler. Yes, 490.

HIS HONOUR:	Yes, I have that.
MR SKYRING:	Right. Now, there are various points put

there. If we come in on this Cox v Journeaux,

Justice Dixon said:

The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only

when the action is clearly without foundation

and when to allow it to proceed would impose a

hardship upon the defendants which may be

avoided without risk of injustice to the

plaintiff. The principle, in general
paramount, that a claim honestly made by a

suitor for judicial relief must be

investigated and decided in the manner

appointed, must be observed. A litigant is

entitled to submit for determination according

to the due course of procedure a claim which

he believes he can establish, although its

foundation may in fact be slender.

Now, I would take the point, I am on an extremely

slender one here with this currency effort, but it

is a very simple point which has enormous

ramifications and it has already been used against

me greatly to my detriment, to which I take great

exception. Now, if we carry on, on that same item:

That position has been consistently taken

in the High Court. In General Steel

Industries v Commissioner for

Railways •••.• " .•• There is no need for me to

discuss in any detail the various decisions -

and if we skip down, starting about E -

Skyring(l3) 81 26/6/92

It is sufficient for me to say that these cases uniformly adhere to the view that the

plaintiff ought not to be denied access to the

customary tribunal which deals with actions of the kind he brings, unless his lack of a cause

of action - if that be the ground on which the

court is invited, as in this case, to exercise

its powers of summary dismissal - is clearly

demonstrated. The test to be applied has been

variously expressed; 'so obviously untenable

that it cannot possibly succeed'; 'manifestly

groundless'; 'so manifestly faulty that it

does not admit of argument'; 'discloses a case

which the Court is satisfied cannot succeed';

'under no possibility can there be a good

cause of action'; 'be manifest that to allow

them (the pleadings) to stand would involve

useless expense';"

What those cases, and the line of authority to

which they form part, make clear - - -

HIS HONOUR: Well, I can read that. At any event, it is

directed at a different question, but I will - - -

MR SKYRING:  No, I would submit - it is the principle what I

am about - - -

HIS HONOUR:  Yes, well I will assume that the principle has

some application to what you are saying.

MR SKYRING:  All right. I will make note of the points on

which actions have been consistently dismissed by

the Full Court, having sat in on a - no matters of

general principle to merit attention of this Court,

or indeed sufficient doubt of the judgments to

merit their being reviewed. Now, those are the

grounds on which the Full Bench knocks back

actions. Now, in my view, I am saying that there

is sufficient doubt in this case because of what I

have shown up with the currency question, as it

impinges on the legislature, which is the source

statutes come, to merit the matter being relocked from which all of these judgments or all of these

at. Failure to do so amounts to a gross abuse of

process on the part of the Court itself and that is

a matter to be viewed very, very dimly.

HIS HONOUR:  Now, is there anything else you wish to add,

Mr Skyring?

MR SKYRING: Yes, I have made the matter about final

judgments. While it is probably correct to say

that - - -

HIS HONOUR:  I am sorry, where are you reading from now?

Skyring(l3) 82 26/6/92

MR SKYRING:  This is down on the bottom of the next page,

but on that same item, on page 491, right down the
bottom of the page, opposite the page which we were

just looking at.

HIS HONOUR:	Yes.
MR SKYRING:	In the quote down at the bottom from

Justice Yeldham's judgment:

..... While it is probably correct to say that

interlocutory proceedings taken in the course

of an action instituted by another person

which is still current are not within the section, I think, without endeavouring to

supply an exhaustive definition, that, where a

final decision has been given -

and I come in again - this is where the final

judgment is really driven home -

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. It is

to the substance of the matter that regard

must be had and not to its form."

Now, this is final judgment which becomes central to the argument. Now, my contention is, and I have

maintained this consistently, that this Court has

not given a final judgment ever on the matters

which I.have broached.

HIS HONOUR: ·well, I understand that. You have said that

several times.

MR SKYRING: Right, okay, Now, on that point then, I would

submit that for the Court to proceed with the order

as sought would itself constitute a gross abuse of

process. It was for that reason that I sought to

have the matter struck out. I believe I am on firm

ground which needs to be addressed. It is a matter

of the competence of the people to do it and that

has been the big difficulty to date. In my view,

as I see it, I believe I have demonstrated

competence to now have carriage of the action and

to continue where, in fact, the matters were not

proceeded with back in 1984.

HIS HONOUR: Yes, I understand your argument.

MR SKYRING:  Okay, what has happened in the intervening

years is that the - - -

Skyring(l3) 83 26/6/92

HIS HONOUR:  I do not want you to go over the same ground

that you have gone over a number of times before.

MR SKYRING: 

The argument is now presented in the form of

the documentation which for the moment you have put
aside, which will allow the question to be fairly

and squarely addressed in the form which I believe

is acceptable to this Court. Failure to do so,
again I would repeat, amounts to a gross abuse of

process, and on the basis of what I have cited

here, to grant this order is in itself grossly

wrong. Thank you, Your Honour.

HIS HONOUR:  Yes thank you, Mr Skyring. Mr Robertson,

anything in reply?

MR ROBERTSON: There is just one matter, Your Honour. In	relation to the judgment of Mr Justice Roden that
Your Honour was taken to, Your Honour will have
seen, perhaps from the headnote, but also from the
collection of propositions that appear on page 491,
the various ways in which His Honour says
litigation may be regarded as vexatious. The
applicant's submission is that this case would come within paragraph 3:

They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly

hopeless.

And we would submit that that has been the position

at least since the judgment of the Full Court, on

appeal from Mr Justice Deane, to which I have taken

Your Honour.

HIS HONOUR: Yes. thank you, Mr Robertson. I propose to

reserve my decision in this matter.

AT 1.43 PM THE MATTER WAS ADJOURNED SINE DIE

Skyring(l3) 84 26/6/92