Kwa v City of Stirling

[1996] HCATrans 354

.D.

OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 60 of 1996

FRANCIS TAK LAU KWA

and

CITY OF STIRLING

PERTH

9.30 AM, WEDNESDAY, 20 NOVEMBER 1996

HIS HONOUR:   Mr Kwa, you appear for yourself?

MR F.T.L. KWA:   I appear for myself, your Honour.

HIS HONOUR:   Thank you.  Mr Skinner?

MR J. SKINNER:   I appear for the City of Stirling, sir.

HIS HONOUR:   Yes, thank you.  Yes, Mr Kwa?

MR KWA: Yes. I just lost a bit of paper. I got it now. Yes, your Honour. My submission is that under section 41 [sic] of the Judiciary Act, any proceeding may be remove from the lower court to the High Court upon application of a party for sufficient cause, so in my view there are two sets of key words to address: upon application and sufficient cause.

HIS HONOUR:   Well, there are some fairly important words that follow, are there not?

MR KWA:   I understand that, but ‑ ‑ ‑ 

HIS HONOUR:   Or at least precede.  There must be a cause or part of a cause arising under the constitution or involving its interpretation?

MR KWA:   Yes, your Honour.  I have ...(indistinct)... got a constitution here, but in my preparation I - if I may submit that in accordance with what I prepare and then perhaps your Honour would allow me to go through that preceding one?

HIS HONOUR:   Well, we will see how it works out, but just before you start, let me just point out a couple of matters to you.  One is that this is a motion to remove a matter that is before the Supreme Court into this court.

MR KWA:   Yes, your Honour.

HIS HONOUR: And you are applying under section 40 of the Judiciary Act. That empowers the court to remove a cause arising under the Constitution or involving its interpretation for sufficient cause. So first of all there has to be a matter or a cause arising under the Constitution, otherwise the section just does not operate.

MR KWA:   I understand.

HIS HONOUR:   And then if it does operate there must be sufficient cause, and in the ordinary course this Court does not remove matters from a State Court into the High Court even if there is a constitutional matter, unless there is sufficient cause shown.  The ordinary way, as I think you probably appreciate, that matters get to this court, other than in the exercise of its original jurisdiction, is through special leave.  In other words, matters take their course in the Supreme Court or in the Federal Court.  They are dealt with by the Full Court of the Supreme Court or the High Court and then an application is made or may be made for special leave to appeal.  The procedure that you have invoked here is a procedure that is directed only at constitutional matters and only for sufficient cause.

MR KWA:   I understand.

HIS HONOUR:   In other words, if there are questions of fact that have to be decided, those matters, those questions are left to the Supreme Court until all factual matters have been resolved, so that if there is a constitutional question, it can come to the court and the court can deal with it.

MR KWA: I understand that. Your Honour, I do understand your kind explanation in that my paper is in touch on the Chapter 3 of the Constitution. My submission would be quite brief and it would only be about 5 or 10 minutes.

HIS HONOUR:   I will hear from you.

MR KWA:   If you could hear from me.

HIS HONOUR:   Yes, I will but can I just say something else before you start and that is that there is a considerable amount of documentary material that has been filed in this matter, filed on your behalf.

MR KWA:   Yes.

HIS HONOUR:   And most of it, I have to say, seems to me to have nothing to do with the application at all.  It relates to other procedures ‑ ‑ ‑ 

MR KWA:   I understand.

HIS HONOUR:   ‑ ‑ ‑ which ware not the proceedings which you are seeking to have removed and on the face of it the only relevant documents, I think, are your motion, the documents in the Supreme Court that relate to this action, being the writ, the statement of claim and the decision by Master Chapman last Friday in which certain paragraphs of your action against the City of Stirling were struck out and certain paragraphs allowed to remain.

MR KWA:   Really, your Honour, if I may address to your query just put forward?

HIS HONOUR:   Yes.

MR KWA:   The reason that they are put in a big volume of documentation there being that it is my submission that I had tried to pursue it at court that they deal to past events, that there has been considerable amount of injustice been incurred on myself and without those documentation, it is only my word but I have no proof.  Those documentation was in an endeavour to prove that the injustices have occurred.  That was the reason for those documentation.  I understand that while the documentation is not relevant as far as arguing the case is concerned about the evidence is concerned.  That is not my purpose of submitting those documents.  It is entirely irrelevant as far as giving evidence is concerned.  But it was ‑ ‑ ‑ 

HIS HONOUR: Well, if it is irrelevant it is a bit of a pity that it arrived in the Court, especially in view of some of the matters that are deposed to or referred to in those papers. Anyway, let me hear from you on what is the basic question: namely, whether there is a cause arising under the Constitution.

MR KWA:   If your Honour would allow me, my pleading to your Honour is that - my prayer to your Honour is that in my view it was - the material were there to support my view that the court was biased and that was those material.

HIS HONOUR:   I am not concerned with that certainly at this stage of the proceedings, Mr Kwa.

MR KWA:   Thank you, your Honour.  So may I continue with my submission?

HIS HONOUR:   Yes, you may.

MR KWA: Yes, your Honour. Well, I come back to the beginning of my submission. Section 4 - 41 of the Judiciary Act provides that any proceeding may be removed from the lower Court to the High Court upon application of a party if sufficient cause is shown. In my view - that is in my view, your Honour - there are two sets of key words to address: upon application and sufficient cause shown. Now, that is in my view, your Honour.

HIS HONOUR:   Well, I do not want to go over the same ground again, Mr Kwa, but your basic - the hurdle you have to jump is to satisfy the Court ‑ ‑ ‑ 

MR KWA:   I understand.

HIS HONOUR: ‑ ‑ ‑ that there is a cause in the Supreme Court arising under the Constitution or involving its interpretation that you wish to have removed to this Court.

MR KWA:   Right.  Yes. 

HIS HONOUR:   Now unless you can make good that first proposition, the rest just goes by the board.

MR KWA:   Right, I understand.  I understand.  As I - submitted earlier that it would take me the most 10 minutes to get through this, your Honour, please.  The first may be addressed in the concluding sentence from the reading of the holy gospel according to Matthew 22 1 14, which says:

Many are called but few are chosen.

Meaning that many may apply but few are chosen.  In this regard I pray that I have sufficient merit as to be chosen.  In further postulating, your Honour, that I should be chosen, I again refer to the holy gospel.  I read according to Matthew 22 1 13 which reflects that:  in order to be chosen one must be wise and devote particular effort for their preparation.  I pray that I have demonstrated this in my paper which I submit to record, now. 

Now, then I turn to more of subject matter. This is a cause - in this application there is a cause arising under the Constitution or involving its interpretation because (1) it is of subject matter being determined in legal proceedings; (2) it does involve a cause arising under the Constitution as it is submitted that the majority decision in Dietrich v Royal. It follows such that the right to a fair trial is to be implied to Chapter 3 of the Constitution. (3) It is here submitted that the inability of a person to gain an unbiased hearing in a Court is akin to that person being denied the right to a fair trial.

The test that should be applied is whether it can be said that the denial to an unbiased hearing is objectively tantamount to a denial of right to a fair trial. However, it is not that your Honour dissented the Dietrich case because you found that the right to a fair trial was not implied in the Constitution. However, your Honour stated that the right to a fair trial is ingrained in our legal system and this I present so that your Honour can jog the memory, I have a copy of the judgment here.

HIS HONOUR:   Well, I think I am sufficiently familiar with that case, Mr Kwa.

MR KWA: Yes, fine, fine. Then further it was stated by Gaudron J to strengthen that which is - I have got this one here. It is stated that the fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution, Chapter 3, is implicit requirement that judicial power to be exercised in accordance with that judicial process.

MR SKINNER:   Your Honour, I have not been provided with copies of any of this information Mr Kwa is handing up at the moment.

HIS HONOUR:   Well, it is not information.  It is a copy of a judgment but let Mr Skinner have it, please.  Go on, Mr Kwa.

MR KWA:   I carry on, your Honour?

HIS HONOUR:   Yes, Mr Kwa.

MR KWA:   Furthermore there is a judgment from Honourable Deane J that supports my view that this is constitutional matter and I have referred this to your Honour.  If I read aloud, your Honour, Deane J:

The fundamental precept of the criminal law in this country is that no person shall be convicted of a crime except after a fair trial according to law.

I know that this is not criminal law but everybody is ...(indistinct)... to a fair trial. That is my belief. The important part is that principle is entrenched by the constitutional requirement of top servants of judicial process and fairness, that is implicit in the vesting of the judicial power of the Constitution, exclusively in a Court which Chapter 3 of the Constitution designates.

HIS HONOUR: But, Mr Kwa, what Deane J is speaking about there is the fact that Chapter 3 of the Constitution is concerned with the judicial power of the Commonwealth, not the judicial power of the States and what he is saying there relates to the judicial power of the Commonwealth. Now your action is against the City of Stirling. It is an action brought in a State Court and on the face of it involves no Commonwealth matter.

MR KWA:   My pleading, your Honour, is that it is a fair trial.  I am Australian citizen.  I am entitled to a fair trial regardless.  Now, constitution ‑ ‑ ‑ 

HIS HONOUR:   But it does not follow, Mr Kwa, that every time there is an argument as to whether someone has had a fair trial or not that that raises a constitutional question which triggers off an application to remove the matter into this Court.

.D.

MR KWA: Under the Constitution chapter 3, section 71 it states that:

The judicial power of the Commonwealth shall be vested in the Federal Supreme Court to be called the High Court of Australia.

HIS HONOUR:   But what I am trying to make clear to you is that we are not concerned with the judicial power of the Commonwealth, this is a State - an action brought in the Supreme Court of Western Australia between a citizen and the City of Stirling raising matters which are not Federal matters, or Commonwealth matters, or as far as I can see, constitutional matters.

MR KWA: But my understanding, your Honour, is that under section 71 of the Constitution the judicial power of the Commonwealth is vested in the Federal Court, and on that particular section it is because the Federal Court dedicate the power to the Supreme Court, therefore the nexus is there. Therefore what is in the lower court is still nexus to the High Court because it is that High Court that has the absolute power to delegate authority to the lower court. And therefore what was given by the law - what has been put imposes in the lower court under section 71 of the Constitution because the delegation is given by the High Court to the lower court therefore the High Court - - -

HIS HONOUR:   Yes, I understand what you are saying.  Yes, Mr Kwa?

MR KWA:   Well, in spite of your dissenting order in the district case I pray that your Honour may regard this matter under a different light because apart from what you have put forward that perhaps it is not your view that it is out of order for the High Court to entertain my particular application, my submission is that if justice is there, if I cannot get any justice from the Supreme Court itself as put down in my affidavit with all the abundant evidence which may not be relevant for particular cases, but refer ...(indistinct)... cannot help about being biased.  And if I found that bias does exist in the Supreme Court well, in that case I cannot get any reasonable fair trial out of that particular court and wherever I go to - - -

HIS HONOUR:   Well, the remedy is of special leave to appeal, or applications for special leave to appeal are available to anyone who seeks to challenge a decision of the Supreme Court but that is ordinarily when the matter has been through the Supreme Court.

MR KWA: I understand that, I understand that but that is - I understand that, your Honour. That is under Constitution 73, section 73(2) that it is for the High Court to hear only the appeal from the lower court. But I look upon your Honour to interpret in such a way that - well, that there is under section 73(2) there, there is actually what it is said is that they - is that the Constitution allow the High Court to hear that case when there is no way that they can be heard in the lower court. The appeal matter may be overcome by the context, the interpretation of that case as I interpret it is that regardless that you have got to go through an appeal but the High Court have the right to hear that application if there is no other avenue for that person to get a fair trial. That is my submission, your Honour.

HIS HONOUR:   Those are your submissions, are they?

MR KWA:   Yes.

HIS HONOUR:   Yes.  Thank you, Mr Kwa.

MR KWA:   Thank you, your Honour.

HIS HONOUR:   Mr Skinner, I do not need to hear from you. 

Mr Kwa seeks an order for removal into this Court of part of proceedings in the Supreme Court of Western Australia which have been identified as number 1016 of 1993. He seeks that order pursuant to section 40 of the Judiciary Act 1903 (Cth) on the ground that what is to be removed is part of a cause arising under the Constitution or involving its interpretation.

Section 40 empowers this Court to order removal in such circumstances but even then an order may only be made for sufficient cause shown. The Court has made it clear that the circumstance that a question of constitutional validity has been raised is not of itself sufficient reason for removal because the Court is thereby deprived of the advantage of a consideration of the question by the court below, in this case the Supreme Court of Western Australia. In particular, relevant facts may need to be agreed or established in order that that question of validity may be determined and, as I pointed out to Mr Kwa, in the ordinary course the Court requires that litigation proceeds through the Supreme Court to completion at which stage the question of special leave to appeal will arise.

Action number 1016 of 1993 is a claim by Mr Kwa against the City of Stirling to return and reinstate a directional sign, coupled with a claim for compensation and damages until reinstallation of that sign.  Last Friday, 15 November, Acting Master Chapman struck out certain paragraphs of the statement of claim leaving the balance for determination in the Supreme Court.  To the extent that part of the action has been struck out, there is no cause to be removed into this Court and, to the extent that part of the action remains, the general principle to which I have referred earlier applies.

But there is a fundamental objection to this application for the part of the cause sought to be removed does not arise under the Constitution or involve its interpretation. Mr Kwa's application speaks of "prejudice against the applicant by some Justices in the Supreme Court" and of "illegitimate adherence of rules and doctrines that are unsound and lead to unjust outcomes". No matter how generously this language is construed, it is not possible to treat it as raising a question of constitutionality. It does no more than assert in the vaguest way general principles of law.

The application therefore fails at the threshold and must be dismissed.  The application is dismissed.

The court will now adjourn.

AT 9.55 AM THE MATTER WAS ADJOURNED
INDEFINITELY