Kingdom Management Pty Ltd Religion v The Commonwealth of

[1990] HCATrans 113

HIGH COURT OF AUSTRALIA

In Chambers

MR JUSTICE TOOHEY

Case Name geion

THE KINGDOM MANAGEMENT P/L RELIGION

and

THE COMMONWEALTH OF AUSTRALIA

TRANSCRIPT OF PROCEEDINGS

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PERTH

10.05 A.M., THURSDAY 17TH MAY 1990

631A 10.05

TOOHEY J:	Mr Nelson?
MR NELSON:	Yes, your Worship, I appear for KM P/L, Kingdom

Management P/L.

TOOHEY J:  Yes, very well, thank you. Mr Nelson, you

understand the purpose of these proceedings?

MR NELSON:  Yes, your Honour.

TOOHEY J: You have sought to file in the High Court a writ

against the Commonwealth and a Justice of the Court has

endorsed those papers in accordance with the rules, that the Registrar is to refuse to issue this process without the leave of a Justice first had and obtained by the party seeking to

issue it. You will need to tell me some things about the

proceedings. I will give you an opportunity to explain in a moment but there is one matter which perhaps we can deal with

at the outset.

The writ is headed "The Kingdom Management P/L Religion."

I take it that is an unincorporated body, is it?

MR NELSON:  It is, correct. It is done under the High Court

judgments, both in 1943 and 1983 respectively.

TOOHEY J:  Well, I am only asking you about the status of the

body at the moment.

MR NELSON:	It's legal. That's all I'm trying to tell you.
It's legal.
TOOHEY J:	Yes.  My question is whether the body is an

incorporated body under any statutory provision.

MR NELSON:  No, it's not. The provisions which allow for

incorporation are state and state law is not in question here.

TOOHEY J:	Well, that may or may not be but the fact is the
body is not incorporated yet it is the proposed plaintiff in

these proceedings.

MR NELSON:	Correct.
TOOHEY J:	What is your association with the body, Mr Nelson?

MR NELSON:  I'm the high priest, your Honour. The Minister

of Religion, I think, by law.

TOOHEY J:	I notice the title of the body has P/L.
MR NELSON:	Yes, your Honour.
TOOHEY J:	Which means?
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MR NELSON:	Priest and Lord Priest of the religion ... ? ...

Communal Church.

TOOHEY J: Well, one difficulty you have, I think, is that the body being unincorporated it would be necessary for it to sue

through someone who represented it.

MR NELSON:  That is right. I have written it out in a

submission to you.

TOOHEY J:	Yes, but that bears upon the title of the action
itself.	At the moment if allowed it would be an action

brought by an unincorporated body. In those circumstances it

is usual for someone to bring the proceedings on behalf of the

body and, indeed, the High Court Rules specifically provide

that if a plaintiff sues in a representative capacity then the

endorsement will show in what capacity the plaintiff sues.

Now, I appreciate that at the moment as the action is framed

no-one is suing in a representative capacity. But in fact there is a body shown as the plaintiff which simply has no

existence under the law.

MR NELSON: Are you trying to tell me, your Honour, that the High Court judgments which give the criteria for the existence

of the religion don't exist?

TOOHEY J: No, Mr Nelson, I am not trying to tell you that at all. All I am saying is that when someone brings proceedings in any court, whether it is the High Court, the Supreme Court, who whichever it might be, it is either in the name of an

individual or in the name of some corporate body such as a

company or an association. That is not to say that an

unincorporated body cannot bring proceedings but it brings

them through some representative.

MR NELSON:	Which is myself.
TOOHEY J:	Yes, but - -
MR NELSON:	The High court Rules have provision for such a
situation.
TOOHEY J:	Do they? Could you direct me to them?
MR NELSON:	Order 16, Rule 3 I think it would be, your
Honour.
TOOHEY J:	You mean where proceedings have been commenced in

the name of the wrong person?

MR NELSON:	Or if it is in doubt.
TOOHEY J:	Or if it is doubtful?
MR NELSON:	Yes.
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TOOHEY J:  Yes. Thank you for that.

MR NELSON: And the submission clears up a small matter on

that same situation because the plaintiff has to be the

religion because the matter in question is this "recognised denomination.'' Those words, which should not even be in the

Marriage Act, are in the Act and that is what is being challenged and I as an individual cannot - - I can't be a

recognised denomination.

TOOHEY J: Well, I wonder is that right, because have you not

in your own name challenged the constitutionality of some of

the provisions - -

MR NELSON:  No, I have not.

TOOHEY J: Well, let me finish - - some of the

constitutionality of some of the provisions of the Marriage

Act in proceedings in the Federal Court?

MR NELSON: No, your Honour. What was challenged was

dismissed for the very simple reason that it did not show a

specific cause of action.

TOOHEY J:  That was not my question, Mr Nelson. I was not

asking you about the fate of the proceedings. I was asKing you whether you as an individual had challenged some provisions of the Marriage Act in the Federal Court.

MR NELSON:  Under a different situation under an entirely

different action, yes, your Honour.

TOOHEY J:  In what way was it different?

MR NELSON:	I myself brought the action.	That is why it is
different.

TOOHEY J:  Yes. Well, leaving that to one side in what other

respects was it different?

MR NELSON:	The intention of myself was very different to the
intention of the plaintiff, the religion in this case. You

see, all I am following is an instruction by Justice Deane.

Now, had I followed that instruction in my last Writ of

Summons instead of attacking persons working for the

particular department concerned I probably would have had a

much better chance. But I got blamed. I just simply thought

administration was wrong and attacked it that way.	But the
Court doesn't work that way apparently.

TOOHEY J: When you say II the instruction of Justice Deane II I

take it you are referring to something Justice Deane said on

the Chambers application in 1988.

MR NELSON:	I am, yes, your Honour.
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TOOHEY J:	But you may be reading too much into what Justice
Deane said on that occasion.	Let me raise a couple of other

matters with you. When the validity of any Act is being

challenged - and I include the Constitution in that since you

have raised some questions of the effect of the Constitution

upon the Marriage Act - - When a statute is being challenged,

whether in reliance upon the Constitution or otherwise, it is

necessary to show that the person who is seeking to challenge

the legislation has some interest that is likely to be

affected by it, as I think you understand. In other words, a

person cannot simply say "Well, I want to challenge the

validity of a particular Act.	I have no interest in it but
MR NELSON:	This is what - -

TOOHEY J: Just let me finish - - but just as some sort of interesting exercise I would like the Court to decide whether that provision is valid or not." Now, I cannot see anything in the proposed Writ of Summons that suggests how the Kingdom Management Religion, or yourself for that matter, is said to

be affected by any provision of the Marriage Act.

MR NELSON: Because it has in it two particular provisions

which would nullify the effect of what Section 116 speaks of

in relation to religion. It would nullify the effect of the

powers of the Commonwealth to legislate against religion.

This is outlined very clearly in the Writ of Summons and I

don't understand what the problem is really. I know

administration want very badly for me not to get to the Court

to point this out but I don't really understand why it is so

difficult to see. It is only justice and legitimate

expectations that I seek. I mean, these are my rights, are

they not?

TOOHEY J: Well, that is really pointing up the problem.

When you say these are your rights I can understand if, for

instance, the Kingdom Management Religion had applied to be

registered as a denomination - -

MR NELSON:	It did, your Honour.
TOOHEY J: Just a moment - - and had been refused and in some

way that affected its activities, or someone had applied to be

a marriage celebrant and had been rejected and wanted to contest the validity of certain provisions of the Marriage Act

because those provisions were being used to prevent

registration as a celebrant. That sort of thing, I think,

came up in perhaps some of the other proceedings in which you

have been involved but for the moment I cannot see it in the

Writ of Summons that you wish to issue here. But if you can

draw my attention to something I would be glad.

MR NELSON:  I have the original - - Well, it's in the - -

We start off with paragraph 4 of the statement of claim.	I
think that is very specific.
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TOOHEY J: Do you mean the one that begins "This clause will

prove that the legislative had exceeded its power - -" and so

on?

MR NELSON:  Yes.

TOOHEY J: But where do you point to something in that

paragraph which shows that either the church to which you

belong, or you yourself, have in any way been affected by the

provisions of the Marriage Act?

MR NELSON:	Not in that particular paragraph, but in further
paragraphs.
TOOHEY J:	Well, take your time and show me in which

paragraphs that is said.

MR NELSON: Your Honour, I don't know whether this idea is

being deliberately done but I think I may have to read this

all out, put in on to record and take it - -

TOOHEY J: You do not have to read it out. You can read it

to yourself, Mr Nelson, and just draw my attention to any

paragraph which bears upon the matter I have just raised with

you.

MR NELSON:	Paragraph 10.
TOOHEY J:	I do not follow that, Mr Nelson.  Paragraph 10

speaks about the laws and the 1943 High Court judgment and

then goes on to say " - - yet unconstitutional provisions

against religion and its Minister thereof were included." But

you have not anywhere suggested how these provisions are said
to operate either against the religion to which you belong or

yourself as a Minister of that religion.

MR NELSON:	That is why I did say a moment ago that it would
be best if I read this all.	11, 12 and 13 may be of some help
to you then.
TOOHEY J:	I am afraid they are not.
MR NELSON: If the administration, your Honour, is prohibited

from such matters as legislating against religion and marriage

in this matter is very much a Minister of Religion's job as well as what it is for the Government in their private little

sectors, it doesn't alter the fact that the law has made it that everything is to be subject to that Constitution. It was ruled on in 1943 by the High Court and this matter here in

paragraph 13 puts it exactly where it is - "This prohibition is in excess of the power to legislate by the Commonwealth on

religion."

TOOHEY J: But do you not understand that the way in which

you have framed this document says no more than that the

provisions of the Marriage Act are invalid because they offend

or certain provisions of the Marriage Act are invalid

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because they offend section 116 of the Constitution? r

suppose anybody can say that. Rightly or wrongly they can say

it.

MR NELSON:  It was said in Parliament, your Honour.

TOOHEY J: But in order to bring a matter before the Court

you have to show that you have some particular interest in the

operation of the statute and this is really taking you back to

what Justice Deane said to you in October 1988. I am just

looking at the transcript of those proceedings.	He said at
the foot of page 10 and over on to page 11:

"What I have said should not be taken as

indicating any conclusion on my part that

the desired application of Mr Nelson is

completely devoid of merit. If in fact

he has been refused registration as a

marriage celebrant or if his registration

as such a marriage celebrant is not

issued for the reason that the requirement

of section 29(a) that he be, quote, 'a

Minister of Religion of a recognised

denomination' unquote, has not been

satisfied a serious question could arise

about whether that requirement was

consistent with section 116 of the

Constitution"

and his Honour goes on to elaborate that. But what I take his

Honour to be saying to you there is really what I am saying to

you now, that you do not in these proceedings indicate any way in which the provisions of the Marriage Act which concern you

are said to operate to your detriment or to the church's

detriment or to affect either the church or you in any way.

In the absence of some provision or some expression of

that sort in the proposed writ it seems to me that it really

cannot get off the ground.

MR NELSON:	I admit that I am not as learned as yourself but
I do know - -

TOOHEY J: Well, it is not really a matter of being particularly learned, Mr Nelson, and I do not want you to

think this is some sort of technical obstacle that is being

placed in your way. What I am saying to you is really quite

simple; that someone who wishes to challenge the validity of an Act of Parliament may do so if they can show that they are

in some way affected by the Act or its operation. Now, it is

not really open to someone to come along and say "Well, I'm

not very happy with this particular Act of Parliament - -"

MR NELSON:  I am not doing that, your Honour.

TOOHEY J: Then would you point in the statement of claim or the writ to something that suggests the Act is bearing upon

your activities or upon the activities of the church?

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MR NELSON: If you go back to the Writ of summons itself to the plaintiff's claim which is on page 3, your Honour - - "- - that the Commonwealth of Australia is being held responsible for the action of its legislation in creating an enactment,

the Marriage Act, which did not obey the Constitutional instructions of subjecting to the prohibitions on religion."

This was enhanced by the Commonwealth law and upheld by the

High Court in 1943 and also in 1983. And it goes on to the

relief.

But the reality is that if administration is prohibited

from doing a particular thing how then would it not affect me

if it does exactly what it says it is not supposed to do?

TOOHEY J:  Well, I understand that argument. What I am

saying to	you is that I cannot see anything in the writ or
statement	of claim which suggests that the administration of
the Act is	affecting your activities or the activities of your
church.
MR NELSON:	Very much it is, your Honour.

TOOHEY J: Well, it may be, Mr Nelson. My point is that I

cannot see anything in the documents that you wish to issue

that says that.

MR NELSON:  Shall we go to the facts then on the statement of

claim, page 7, paragraph 35?

TOOHEY J: Well, those facts seem to relate to the

Parliamentary debate that led to the passing of the Marriage Act; a general argument that in some way the provisions, or the administration of the Act is contrary to the Constitution. but without showing that in any way the legislation affects

you or your church. It seems to me that unless you can say

that you just do not get off the ground.

MR NELSON:  In paragraphs 37, 38 and 39 it does do that

because I had to make a specific statement of claim.

TOOHEY J:	Mr Nelson, I appear to be putting difficulties in
your way perhaps, but there seems to me to be an even more	fundamental difficulty that faces you in that what you seek to
do by this action is to challenge certain provisions of the
Marriage Act. Now, have you not already done that in the action which you brought in the Federal Court, unsuccessfully, of course?
MR NELSON: In the correct procedure of the law, no, I have
not, which is why it was unsuccessful. This is, however, done exactly how the law has specified it should be done.
TOOHEY J: Well, I am looking at the judgment of Mr Justice
French which was delivered on the 9th of February this year. It is an action, I take it from the judgment, brought by
yourself and not by the church and it is brought against two
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persons, M. Fish and R. Morgan who are officers of the
Attorney General's Department, are they?
MR NELSON:  Have nothing, your Honour, to do with this
particular action.
TOOHEY J: Well, it does in the sense that, if I have read
the judgment correctly - - In that judgment you sought to get
certain relief against those two officers, but underlying the action was the proposition that certain provisions of the
Marriage Act were invalid.
MR NELSON: Mr Justice French had nothing to be concerned about in that matter. But what he did say was there was not a
specific cause of action which would notify the defendants
exactly what they had to answer.
TOOHEY J:  Well, it seems to me he goes further than that, Mr
Nelson. I am looking at page 11 which is almost at the conclusion of the judgment. After his Honour has analysed certain decisions of this Court and the argument which has
been put to him he says:

"In the light of those principles the

statutory scheme for regulating the

class of persons who may solemnise

marriages does not disclose any basis upon which it could be argued that it

interferes with religious freedom in

a way that conflicts with section 116

and the provisions of section 113(5)

preserve in a way that is consistent

with the free exercise of religious

observers the rights of persons

married in the eyes of the law to

undergo a religious form of marriage even where the religion concerned is

not a recognised denomination and its

Minister is not a registered Minister"

and that is the end of the quote.	Now, I am not asking you to
you is that the argument that you seek to raise through these	accept that conclusion is right or wrong. All I am putting to
proceedings is an argument that was raised before Justice
French and rejected by him and from which no appeal was taken.
MR NELSON:  That is correct. I have no intention to appeal
against a decision which I know is probably correct. I did
not have a specific cause of action. I do now.
TOOHEY J:  Yes, all right. Is there anything else you wish
to say to me about this application?
MR NELSON:  Well, it is merely an application to require
leave to proceed. I don 1 t fully understand why because
permission has already been given by Parliament to actions
against the Commonwealth.  It has already been done. We have
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our laws, Section 56, and we have the rights in Section 64,
both the Commonwealth and to the plaintiff. But that is not
my concern.  The nice way that everybody seems to have taken
what Section 116 is talking about - - We've got three -
actually, there are four steps, and one of them is the observance - the Commonwealth cannot interfere with the
observance of that religion. Now, if I go and pronounce my
members married and they have kids and everything else they are quite happy with the situation and so is the Commonwealth
because it doesn't have anything to do with it - right?
Now, if those members apply for a passport; they want to go and see Mum and Dad or they want to have a holiday they can't get it in their married name because the marriage isn't
recognise and nor is the religion. Yet the members believed
it was quite legal, and in fact it is quite legal inside the religion. When it goes outside the religion then there are
problems. All I am trying to do is to ask the Commonwealth to
obey clause 116 and also Section 51 where the marriage is in
fact limited not just to the Commonwealth but also to the
Ministers of Religion. There really is nothing wrong with
that. There is no abuse, no intention of abuse, which, I
think, is probably what the main fear is. But the reality of
it is if my members come up to me and say "Listen, we are
supposed to be married yet the Government departments reckon
that we are not." I mean, is that not interfering with the
observation of belief - mine as well as theirs?
TOOHEY J:  Is there anything further you wanted to put, Mr
Nelson?
MR NELSON:  Well, it is quite clear the Court is trying to
stop me from being able to proceed. I don't know if I can go
any higher. There is very little that I can do as a person if
I don't understand everything the Court is trying to do. But
on the other hand I have obeyed the rules of the Court as laid
down. I fail to see why administration has that much power
that it can just override what the rules tell me but it seems
to be the case so what can I do? I am completely at a loss to
understand what is happening but that is the way it is. My
rights to legitimate expectations are foregone. The

plaintiff's right to legitimate expectations are all gone. I

mean, we have words with no meaning. What can I do? The only

step now is to go to the media and if that is what I have to

do then that is what I will do.

TOOHEY J:  Very well. Just sit down please, Mr Nelson.

Mr Nelson, this application has been brought because

Order 58 Rule 4 of the High Court Rules provides that if a writ appears to a Registrar on its face to be an abuse of the

process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may

direct him to issue it or to refuse to issue it without the

leave of the Justice first had and obtained.

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Such a direction, that is a direction that the writ not

be issued without the leave of a Justice of the Court, has
been given in the present case. The purpose of this

application is to give you the opportunity to persuade the

Court, if you can, that it is proper that the proceedings be

issued, that they are not frivolous or vexatious and do not

constitute an abuse of the process of the Court.

Those terms might suggest some overtones that they do not

stictly bear. Their purpose is to ensure that any proceedings

comply with the rules of the Court and meet the requirements

of the law generally. It seems to me that there are three

difficulties in the way of this process and they are difficulties I have already mentioned to you. The first is

that the plaintiff is an unincorporated body but it purports

to bring these proceedings in its own name. That is not

fatal, no doubt. The defect could be cured by some form of

representative action.

Secondly, and more fundamentally, I find nothing in the

writ or the statement of claim that shows that the plaintiff

has any particular interest in challenging the provisions of

the Marriage Act. I appreciate that you have taken me to various paragraphs of the statement of claim, but having done so and having read all the documents filed in this matter, I cannot see that you are able to meet that quite fundamental

difficulty.

Thirdly, there has been an action in the Federal Court,

in which a judgment was given by Mr Justice French on 9th

February 1990. I appreciate that the plaintiff in that

action was yourself and not the church and I appreciate that

the defendants were two officers of the Attorney-General's

Department and not the Commonwealth. But the fact remains

that in that action you - and after all you hold yourself out

as representing the church - sought to do, broadly speaking, what is sought to be done in these present proceedings; that

is, the proceedings it is hoped to commence.

In a considered judgment, Justice French dismissed that

me, bear very much upon the questions that are sought to be	application and the reasons which his Honour gave, it seems to
agitated in these proceedings. No appeal was taken from the
judgment in that case.

The combination of those factors, I am afraid, leads me

inevitably to the conclusion that this application must be

refused. I suppose I could adjourn the proceedings and give you a chance to put them in order. But the documents themselves do not really admit of the surgery that would need

to be done to comply with the rules and the judgment of

Justice French still remains as an obstance.

In all the circumstances it seems to me that the

appropriate order is to refuse the application and that is

what I do.	The court will now adjourn.
SM

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