Kitchen v The Attorney-General of Victoria

[1989] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M78 of 1988

B e t w e e n -

S.A.L. KITCHEN

Applicant

and

THE HONOURABLE THE ATTORNEY-GENERAL

OF VICTORIA

Respondent

Application for special leave to

appeal

MASON CJ DAWSON J McHUGH J

Kitchen

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1989, AT 4.05 PM

Copyright in the High Court of Australia

MlTll/1/RB 1 17/3/89

MR S.A.L. KITCHEN:  I. am the applicant in this matter, Your Honour.

MR I.J. HARDINGHAM: If it please the Court, I appear for the

respondent Attorney-General for Victoria. (instructed

by the Crown Solicitor for Victoria)

MR KITCHEN:  I have in front of you, Your Honour, rather

voluminous material as in affidavits and there are

documents referred to there which are available. I

have been informed that the Justices peruse those
beforehand. If that is so, I am inclined initially

just to take a few minutes and then, as far as I can

understand, it seems to me conclusive I shall have to

rely on replying to the defendant if he makes a point.

MASON CJ: First of all, Mr Kitchen, there is a problem about

the presentation of this application for special

leave to appeal. Rule 11 of Order 69A requires that:

An application for special leave to appeal

shall be made to a Full Court by counsel.

In order to comply with the rule it is necessary

that you instruct solicitors so that counsel present

the application on your behalf. That you have not

done, and I take it that the Registry has drawn the

requirement of the rule to your attention.

MR KITCHEN: That is so, Your Honour. Just in passing, it is

interesting the forms under that rule do in fact

provide for the applicant as well as the counsel, but

more to the point, which I did draw to the attention of the Registry, is that section 78 of the JUDICIARY

ACT does provide that:

In every Court exercising federal

personally - jurisdiction the parties may appear

or by counsel, and I would have thought that the

controlling Act overrides the rule, rather than the

rule can set aside its controlling Act.

MASON CJ:  There. is, however, a decision of this Court which

holds that the rule is valid. A decision called HASS

or COLLINS.

MR KITCHEN:	I did have some references as to the meanings of the statute and until Parliament changes the statute
it cannot be otherwise. Without going back to my
case, just to quote HOLLINSHEAD V HAZLETON,
(1916) AC page 457, I think, that the law is as the
statute stands until such time as parliament changes the legislation the statute rules. I do not want to
contradict Your Honour but it is an extraordinary
situation where a rule can override its own controlling
Act.
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MASON CJ: Yes, but the fact is that the Court has considered

the question you seek to raise and, having

considered the question, the Court has given its

decision in favour of the validity of the rule,

holding that there is no inconsistency between the

rule and the section of the Act.

MR KITCHEN:  Well Your Honour, in giving that decision, could

I have that decision in writing, having particular

regard - - -

MASON CJ: What we are seeking to do is to get a reference to

the decision so that you can refer to it.

MR KITCHEN:	Yes, Your Honour.
MASON CJ:	My recollection is, and this is confirmed by the

Registrar, that it is roughly in volume 8 of the

Australian Law Reports. Now, I cannot guarantee that

that is the precise number of the volume but it is

round about there.	I think it was decided round about
1975.

MR KITCHEN:	If that, in other words, is to be the decision of the Court, could I have those reasons as per
DE IACOVO V LACANALE, (1957) VR 553, particularly pages 556 to 559, with a reference to several other
cases and Broom's Constitutional Law, and also
RV BOARD OF EDUCATION, an English case in (1910) AC, those reasons specifically stated so I may have
something on which to go.

MASON CJ: There is a report of the case, it is reported, so

you will see the reasons for the decision in the

report.

MR KITCHEN:	I was asking, if I am correct in doing that, that this Court in giving that decision, if that is its
decision, that it do so specifically state those
reasons as provided by those authorities, and also
Anzarut and Carew, Introducing Law, page 170, so that
I have the specific reasons on this particular case.
May it please Your Honour.

MASON CJ: What I am suggesting to you is that the Court would

follow the decision in HASS. Now, the decision is

reported in 8 ALR 150 and I will read the headnote to

you:

The applicant sought special leave to appeal

his conviction ..... He wished to present

from a decision of the Court of Criminal

his case in person through oral argument.

It was argued that 070 r2(6), -

which is the equivalent of Order 69A rule 11 now -

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which requires applications to be made "by counsel" was inconsistent with s78

of the JUDICIARY ACT .....

HELD,	(a) .....
(b)

(i)      s78 does not give a party an absolute

right to appear in person;

(ii)    070, r2(6) is a convenient rule of

practice and therefore valid.

MR KITCHEN:	I can only, as my understanding of - and there are leading cases, for example, on the question
which would be argued, that there have been cases where a practice cannot continue once it comes up
against the statute and I would still request,
respectfully, that in this particular case I have
the particular reference to this particular case
by the authorities I have quoted, that those reasons be explicitly stated as to why a rule, under its
controlling Act, is superior to that Act.
MASON CJ:	Mr Kitchen, what I suggest you do is - we are

obviously not going to finish this case this afternoon,

we have to adjourn in two minutes time - I suggest

between now and the time when this case comes on

again you look at the report of COLLINS' case, HASS'

case, and then you guide yourself by what you see

there. Now, it may require that your application

is presented by counsel.

MR KITCHEN:  That will be quite impracticable for many reasons,

Your Honour. In fact that dismisses the

case, to appeal to the last conventional appeal to

the highest and most important right in our law and

the most emphatically expressed. So do away with

the right to the right to justice and all rights

dissolve.

MASON CJ:  It is not doing away with the right to justice at

all; it is merely saying that when it comes to the

presentation of a special leave application to this	Court, it is to be presented by counsel. That does
not deny justice.

MR KITCHEN:  No, but it is quite impracticable to get counsel,

Your Honour. For all practical purposes - - -

MASON CJ:  Why is it impracticable to get counsel?

MR KITCHEN: For one thing, I cannot finance it. I cannot get

assistance. I cannot rely on counsel. The sort of

things I have had from counsel in dealing with this

particular case are quite extraordinary. Reliance on

a law that did not exist, that is in the affidavits

you will see. That was from the Government Solicitor.

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Reference to having ..... and it has been quite

obvious in various messages or statements that

they will not go against something that is

clearly not wanted and that is why I say - - -

MASON CJ:  It is not a question of not going against something

that is not wanted, but before we adjourn perhaps

I ought to say this to you, Mr Kitchen, that having

read all the materials it seems to me, prima facie

at any rate, that you do not have a case that you

can present to this Court. What you are asking the

Court to do, in effect, is to rule upon a petition

Now, the courts just do not have jurisdiction to do	of right that you have presented to Her Majesty.
that.

MR KITCHEN:  There are authorities that, if not saying so in

so many words any more than they say that the Sovereign

must do so-and-so, they do say that the Attorney-

General has the duty and with that consideration, the courts do come very close to it and the leading authorities come very close to it.

MASON CJ:  Mr Kitchen, I do not want to get into an argument

with you about it now, but I just wanted to warn you

in advance that, having read the materials, they just

do not disclose a case in respect of which this Court

or the supreme court could grant relief. I think it

is right that I should point this out to you before

the matter is adjourned because I do not want you to

waste money and effort in pursuing what, on the face

of it, appearsto be a hopeless cause.

MR KITCHEN:  What you are saying is there is no point in getting

counsel because when it comes on, it will not succeed,

in effect.

MASON CJ: That is what I am suggesting to you.

MR KITCHEN:  That is the point I am making, that it comes to

the point where we go to the actual right to get

justice, the most fundamental, which is not qualified,

we will not delay or deny justice to anyone. If you

cannot get that then you have no rights because they

can always be circumvented.

MASON CJ:  No, but I am not saying to you that you cannot get

counsel, you will not be able to get counsel; what I

am saying to you is that I do not think, on the face

of it, that you have a case. Now, in saying that, I

am not expressing a concluded opinion on the matter

but I am seeking to give you advice in your own best

interests.

MR KITCHEN:  I cannot argue that most fundamental point and I

cannot get counsel. One legal service said, it was

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quite a small matter, some particular body, that it does not exist. The Act says it does. It does not

matter if the Act does say so, it still does not.

Now, that is the sort of thing I am up against.	You
can understand that, Your Honour.

MASON CJ:  Anyhow, we will have to adjourn the matter now, but

I did want to point out to you first of all that there

is the problem of your complying with the rules in

terms of presenting the application and I wanted to

draw your attention to what are the inherent

difficulties of the case that you are seeking to present.

MR KITCHEN:  Would Your Honour comply with that request, that

the reasons be specifically stated why the rules

override- - -

MASON CJ:  I am not going to comply with that request at the

present time. You read the report of COLLINS (HASS) case

and you will see what the reasons are as stated there

for that ruling.

MR KITCHEN:	And having done that, what can I do?
MASON CJ:	You consider it in the light of what I have told you.
MR KITCHEN:	Yes; can I take any action after having considered

that?

MASON CJ:  It is a matter for you to decide, in the light of

the observations I have made to you, Mr Kitchen.

MR KITCHEN:  I mean, can I come back to the Court or am I

excluded anyway?

MASON CJ:  You are not excluded anyway, but you have got to

comply with the rule on its face as things stand and

you want to consider whether or not the case is worth

pursuing. Having said that, I have no alternative

now but to adjourn the Court. The matter will stand

over to next motion day in Melbourne.

AT 4.17 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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