Laing v Lowe

[1993] HCATrans 180

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B3 of 1993

B e t w e e n -

RICHARD NORMAN LAING

Plaintiff

and

PERCY LOWE and NOEL McEVOY

First Defendants

THE STATE OF QUEENSLAND

Second Defendant

DAVID JOHN McCAFFERY (Deputy

Registrar and Marshal of the

Supreme Court of Queensland at

Townsville)

Third Defendant

ANDREW VAN-DER BERGHT

Fourth Defendant

Laing 1 30/6/93

MURJEN PTY LTD

Fifth Defendant

SIDNEY KEITH BOESE

Sixth Defendant

Application for the striking
out of a writ and a statement

of claim

BRENNAN ACJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 30 JUNE 1993, AT 4.34 PM

Copyright in the High Court of Australia

MR R.W. MORGAN:	If Your Honour pleases, I appear on behalf of the applicant/fifth defendant. (instructed by
McKays)

MR P.J. BASTON: If Your Honour pleases, I appear on behalf

of the second, third and fourth defendants who are
also applicants before the Court today.

(instructed by the Crown Solicitor for Queensland)

MR R.N. LAING:  My name is Laing, Your Honour, and I appear

as the plaintiff who has brought the proceedings

against these people.

HIS HONOUR:  Yes, Mr Laing. Now, whose summons is it first?

MR MORGAN:  Your Honour, the fifth defendant's summons, my

summons, is first.

HIS HONO~ : Yes. Well now, what is your material,

:,tr Morgan?

MR MORGAN:  Your Honour, if I could read my material. I

read the writ; I read the defence filed 11 June

1993; the entry of appearance filed 11 June 1993;

the summons filed 11 June 1993 and the affidavit of

Anthony John O'Dwyer sworn 10 June 1993 and filed

11 June 1993, and I seek leave to read and file an

affidavit of Anthony John O'Dwyer sworn 29 June.

HIS HONOUR:  Has Mr Laing got a copy of this affidavit?

MR MORGAN:. We have attempted to provide him with one in the

body of the Court but he has declined to receive

it.

HIS HONOUR:	I see.	Mr Laing - - -
MR LAING:	Your Honour, I am quite happy to accept it at this time.	They tried to serve it on me in the

Court prior to the hearing beginning. They have

had plenty of time to serve it and if they wish to
serve it now, fine, but I believe that because they
did not serve it in a correct procedure they should

not be seeking costs at a later date.

Laing 2 30/6/93

HIS HONOUR:	You had better give Mr Laing a copy of that affidavit now, I think, Mr Morgan.
Mr Laing, this affidavit is something that Mr Morgan wishes me to read for the purposes of
this application. If, when you look at this
affidavit yourself, there is anything in it that you need to consider in order to deal with the
present application, then you should say so. If
you need an adjournment for any reason, you should
say so.

MR LAING:  Your Honour, let me just say this: it has taken

me several months to have this matter filed in the

High Court and these people to be served and it has

cost quite a lot of money to do it. I am not a

solicitor. I am not a barrister either. I am a

businessman who has been ripped off by these

persons that are being represented here today by

these solicitors and barristers.

Now, if they knew anything at all about the

law then they would show a little bit of integrity

and try and show that they had some respect for the

law. Now, I received some paperwork here,

Your Honour, from my solicitor yesterday, from the

person representing the second, fourth and fifth -

I think they are representing.	Anyway, it is the
Crown Solicitor.	I have learned that he filed that
14 days ago.	He has had plenty of time to serve it

on my solicitor at a reasonable time for me to

prepare a reasonable defence.

The same goes for these people. He wants to

serve it five minutes before the Court. Okay?

Does that sound like giving the person that they are arguing with in this Court a fair go? It

sounds like garbage to me, Your Honour.

HIS HONOUR: Well now, Mr Laing, it is a question of

whether, when you look at the affidavit, there is

anything in it - I have not seen it myself, so I do

not know what is in it - but if there is something

in it which you need some time in order to deal

with then you are entitled to ask for that time.

MR LAING:  Your Honour, I brought these charges here in this

High Court - this High Court action that I have

served on these people, because if it goes to the

High Court and I subpoena witnesses and I follow

through, the charges that I am attempting to bring

I will sustain and prove that perhaps not all of

these people, but certain some of them, are

dishonest. They have ripped my company off.

Members of the Supreme Court have lied in affidavit

form before the Supreme Court. The persons that

brought the original arrest, they have made false

Laing 3 30/6/93

claims. I can prove that much of the so-called goods supplied, one, was never supplied and/or,

two, was accepted by a person who is colluding with sacked from my employment.

them to defraud my company, and who signed,

HIS HONOUR: Mr Laing, I do not want to interrupt you.

Mr Laing, I do not wish to hear any of your speeches about problems that you might wish to

address if this case comes to trial.

MR LAING:  It should come to trial, Your Honour, if there is

any justice in this land.

HIS HONOUR: Well, just~ moment. Just a moment. Let there

be no misunderstanding about what these proceedings

are. These are proceedings in which it is said

that you have misunderstood the jurisdiction of the

High Court, that you have no right to bring your

proceedings in this Court. Now, that is the nature

of the attack that is being made on your case.

MR LAING:	I am aware of that, Your Honour.
HIS HONOUR:	Now, if that is so, it is my duty to consider

whether that objection is, in law, a good objection

or not. I am not interested at this time in the

merits or demerits of anybody's case.

MR LAING:	Can I ask you this, Your Honour - - -?
HIS HONOUR:	I am concerned only with the question of

whether the attack upon your cause of action in

this Court is valid or not.

MR LAING: Can I ask you this, Your Honour: is the

High Court regarded as a court of appeal in this land?

HIS HONOUR:  Mr Laing, litigants who come to this Court have

to come with their own understanding.	They do not
get advice from the Court.

MR LAING:  It is a fair question. I think it deserves an

answer: yes, it is, or it is not. As I
understand, the court of appeal in this land - on
information given to me by legal advice is that the

High Court is a court of appeal and if you wish to have a decision overturned made by the Supreme

Court then you apply to the High Court, and that is

what I have done, Your Honour. That is why I have

brought the action in the High Court, because I do

not want it to go back t'o the Supreme Court because
the Supreme Court of Queensland is full of

corruption and dishonest people.

Laing 4 30/6/93

HIS HONOUR:	Mr Laing, I do not propose to allow you to take the advantage of the privilege of litigants in this
Court to expose others to comments of the kind that
you are now making.
MR LAING:	Okay, righto, well, carry on, Your Honour.
HIS HONOUR:	Now, if you wish to deal with the problems that

are before me at the moment which I have outlined

to you, you are at liberty to do so. The first

problem that you should address is whether the

affidavit which has been provided to you is one

which you need time to deal with or not.

MR LAING:  I will have a quick 10 minute look at it,

Your Honour, if that is okay.

HIS HONOUR:	You may have a quick look at it now, Mr Laing.
MR LAING:	Thank you.
HIS HONOUR:	Yes, Mr Laing?

MR LAING: Yes, I am happy with what I have seen here,

Your Honour.

HIS HONOUR:  So, we can go on with the application?

MR LAING: Yes, by all means, Your Honour.

HIS HONOUR:  Yes, Mr Morgan, I should read that affidavit,

should I?

MR MORGAN:  Yes. Your Honour, I hand up that affidavit.

Unfortunately, it is marked, although not on the

front. I apologize for that. Your Honour, the

relevance of that will become apparent later.

HIS HONOUR:  Yes.

MR MORGAN:  Your Honour, can I hand up a list of authorities

and my outline of submissions, together with a

bundle of authorities.

HIS HONOUR:	Have you got a copy of those for Mr Laing?
MR MORGAN:	Yes, he has been provided by facsimile with a

copy of the list of authorities. A copy of the outline of argument for him and a copy of - - -

MR LAING:  Is this what you are talking about?

MR MORGAN:  No, that is an affidavit from the Crown. This

is the fifth defendant's outline of argument and

some authorities.

Laing 30/6/93

Your Honour, if I can take you to the outline

of my argument. This is an application by the

fifth defendant under Order 11 rule 5 and Order 26

rules 16, 17 and 18, for the dismissal of the

action and statement of claim.

The statement of claim, as it is required to

do by Order 21 rule 2, must make an allegation as

to the foundation for the jurisdiction which the

plaintiff seeks to rely on. To put it in a

nutshell, Your Honour, it is the fifth defendant's

submission in this case that this Court no longer
has original jurisdiction in admiralty matters, nor

does it have jurisdiction on any of the bases

referred to in the statement of claim and that,

further, the plaintiff is not a proper party in any
event in that all of the loss that he pleads his
causes of action in respect of and the matters in
respect of which he pleads that cause of action

were with respect to a vessel owned not by him but

by a company. And then we have subsidiary

submissions about the statement of claim and

whether it discloses a cause of action, but it

ought not to be necessary to come to those since,

quite simply, in my submission, this Court lacks

jurisdiction.

HIS HONOUR:  Perhaps we had better examine the bases of

jurisdiction asserted by Mr Laing in his statement

of claim.

MR MORGAN:  Yes, Your Honour. The outline deals with those

on page 1. It purports to found jurisdiction on

section 71 of the Constitution, 32 of the Judiciary

Act, 75 of the Constitution, and there is a ground

which is headed, "Collusion of an Officer of the

Supreme Court of Queensland". Would it be

convenient if I processed those one after another,

Your Honour?

HIS HONOUR:	Yes.
MR MORGAN:	Your Honour, section 71 merely describes the

existence of the High Court and the fact that it jurisdiction over any matter.

shall exercise judicial power of the Commonwealth.

As to section 32 of the Judiciary Act, it

merely states that the High Court is to give full

relief in any matter which is before it in which it

has jurisdiction. It has been held that it is not

to be regarded as a section from which the Court

derives jurisdiction. The authority for that

proposition, Your Honour, is Philip Morris v Adam

Brown Male Fashions - which is in the bundle

briefed to you - in particular, the judgments of

Laing 6 30/6/93

Sir Garfield Barwick at page 477, in the middle of the page:

s 32 of the Judiciary Act was available to

justify certiorari not because, independently,

the Court had jurisdiction to entertain an

application for the prerogative writ but

because, having jurisdiction to grant
prohibition, the writ of certiorari was a

convenient, indeed a more convenient, mode of

exercising the jurisdiction which undoubtedly,

in my opinion, the court had.

In other words, it is a facilitative provision and not a provision which founds an original

jurisdiction in the Court.

That principle is also dealt with by

Mr Justice Gibbs, as he then was, at page 489 of

that judgment at about point 6 down the page. Just

after those citations on page 489, Your Honour, of

Roberts v Gippsland Agricultural and Earth Moving

Contracting and McLeish, His Honour commences:

Nevertheless the provision does not appear ever to have been regarded as conferring jurisdiction, rather than power, on the court -

so, in my submission, it is quite clear that 32 of

the Judiciary Act cannot provide a source of

jurisdiction.

As to section 75, which is also endorsed on

the writ - section 75 of the Constitution sets out
the matters in which the High Court shall have

original jurisdiction, namely:

matters -

(i)       Arising under a treaty:

(ii)     Affecting consuls or other

representatives of other countries:

(iii)    In which the Commonwealth, or a person suing or being sued on behalf of the

Commonwealth - - -

HIS HONOUR:  Yes, I am familiar with section 75.

MR MORGAN:  Yes, I am sure Your Honour is. Your Honour, it

does not refer to any source of jurisdiction that

is present in this case as being disclosed on the

face of the statement of claim.

As to the fourth matter endorsed on the writ,

the source of the Court's jurisdiction, "Collusion of an Officer of the Supreme Court of Queensland",

Laing 7 30/6/93

my submission is that falls under no recognized

head of the High Court's original jurisdiction.

I have a submission on onus which Your Honour

will see from the written submissions, and that is

that the onus falls on the plaintiff to establish

jurisdiction once it is challenged.

HIS HONOUR:  What do you understand the plaintiff's

statement of claim to be claiming as against your

client?

MR MORGAN:  It pleads, in a way, the history of proceedings

before single judges in the Supreme Court of

Queensland whereby my client was the plaintiff and

obtained orders for arrest, and then subsequently

sale and then, subsequently, as to the priorities

on the payment out of the proceeds of sale of

Mr Laing's vessel.

The pleading that he has produced in this

action claims against the fifth defendant for

wrongful arrest, malicious prosecution and

conspiracy and seeks to have set aside the order

for the arrest and sale of the vessel, and damages

in respect of those other causes of action.

HIS HONOUR:  I do not think I need to hear you further,

Mr Morgan.	Is there anything further you wish to
say?

MR MORGAN: Only, perhaps, by way of reply, Your Honour.

Thank you.

HIS HONOUR:  Yes. Now, Mr Laing, before I call on you to

respond, I will see what the counsel for the

second, third and fourth defendants has to say.

Yes, Mr Baston? What is your material, Mr Baston?

MR BASTON:  Your Honour, could I read the summons filed by

the second, third and fourth defendants on 22 June,
together with an affidavit of David John Mccaffery

filed on 23 June. If I could hand to Your Honour

an outline of my submissions.

HIS HONOUR:	Has Mr Laing got a copy of these?
MR BASTON:	Yes, he does, Your Honour. Simply put, we say,

Your Honour, that this Court no longer has original

jurisdiction in admiralty matters. There is no
other basis set forth in the statement of claim to

attract the original jurisdiction of the High

Court. It is not asserted that Mr Laing is in fact

a resident of another State suing the State of

Queensland but, in fact, he gives his address for

service as in fact being within the State and that

it is appropriate in the circumstances to set aside

Laing 30/6/93

the writ, and we say that for the jurisdictional

basis and for the basis that Mr Laing has no

standing.

It is clear from the material annexed to

Mr McCaffery's affidavit that the arrest was

pursuant to a writ that issued out of the Supreme

Court of Queensland at Townsville. If Your Honour looks at exhibit DJM2 to Mr McCaffery's affidavit,

Your Honour will see - - -

HIS HONOUR: That is a transcript of proceedings, is it?

MR BASTON:  Yes, that is the exhibit, Your Honour. The

matter came before His Honour Justice Kneipp in

Townsville on 11 March 1992. On that day Mr White

of counsel appeared for the plaintiff in the

Supreme Court proceedings and Mr Laing, this

plaintiff, appeared before His Honour. At the

bottom of page 2 of the transcript, Mr Laing

announces his appearance before His Honour and

sought His Honour's leave to appear on behalf of

the company, the defendant below, and that was the

company, Lakeside Developments Pty Ltd, the owner

of the vessel. The affidavit that my learned

friend, Mr Morgan, obtained Your Honour's leave to

file today had annexed to it the shipping register

from the register of ships in Canberra, and that is

prima facie proof of the ownership of the company.

But in any event, Mr Laing told the court at page 3

at line 3:

Well, Your Honour, the company is in a fairly

severe financial position and I am the

managing director who owns 999 out of 1000

shares. I was hoping that Your Honour would

grant me leave to appear on behalf of the

company.

His Honour then sent Mr Laing away to attempt to
get legal aid.	Mr Laing could not get legal aid

and eventually came back at 2.15.

At page 6 of the transcript commencing at

about line 11, His Honour allowed Mr Laing

permission to appear on behalf of the company.

What transpired on that day, Your Honour, as

evidenced by the exhibit, was two things: an oral

application by Mr Laing, in essence, to have the

ship released from arrest; and an analysis by him,

a plea to the court to release from arrest and

allow the ship to go to sea to pay the money the

subject of the plaintiff's claim.

So it is clear from as early in proceedings as

March of last year, 11 March last year, that

Mr Laing was interested in the proceedings as a

Laing 9 30/6/93

director of the company that owned the vessel and

sought before the court the release of the vessel.

HIS HONOUR: Again, I do not need to go into the merits of

this, do I?

MR BASTON:  No, Your Honour. What then transpired

ultimately, was that Mr Laing was present as was

the company, on each of the further steps that took

place.

MR LAING: Untrue.

HIS HONOUR:  We are talking here, only as I understand it,

Mr Baston, about the jurisdiction of this Court to

entertain the cause of action which is in the writ.

MR BASTON:  Yes, Your Honour. I will restrict myself - -

HIS HONOUR:  So that that is the only matter with which I am

now concerned.

MR BASTON:  Your Honour, I do not think there are any other

matters that I could assist Your Honour with.

HIS HONOUR:  Yes. Very well. Mr Laing, it is your turn to

now to say what you wish to say about this

application that has been made against you.

MR LAING:  Your Honour, I would like to begin where -

HONOUR:  Do you · :erstand the na-·,.- ::-e of the application

that is agai 3t you?

MR LAING:  I am hazy, Your Honour, I have never been to the

High Court before.

HIS HONOUR:  Let me try to explain it to you so that you

will be able to deal with it.	The High Court has
got two areas of jurisdiction.	One area of
jurisdiction is when it hears appeals from other
courts.	The other area of jurisdiction is when

somebody who claims to have some right sues in the

High Court itself and asks the High Court to give

that person some relief.

Your proceeding seems to be in the second area

of jurisdiction, that is, you are coming here asking for the relief that is set out in your statement of claim.

MR LAING: That would be correct, Your Honour.

HIS HONOUR:  Now, the only kinds of cases that can come to

the High Court and seek relief are cases in which

the Constitution or the Parliament have conferred

jurisdiction on this Court to hear that sort of

Laing 10 30/6/93

case. The main argument that is put against you is

this, that this case, if it is any sort of case at

all, is a case in admiralty and up until 1988 the

High Court had jurisdiction in admiralty but in

1988 that jurisdiction was taken away from the

High Court and the High Court no longer has that

jurisdiction. Now, that is the problem. Do you

understands that?

MR LAING:  I understand what you are saying, Your Honour,

but can I also point out that the Admiralty Act is

a Commonwealth Act and it is not a State Act and

that the Supreme Court of Queensland acted on

behalf of the Commonwealth in this matter. So,

even though possibly the law states one thing, it

is an ass in another way because it is still a

Commonwealth Act.	The Admiralty Act still is laid
down on behalf of the Federal Government.	It is
only instituted by the States separately.

HIS HONOUR:  It is a Commonwealth Act but it gives

jurisdiction to State courts in admiralty. That

might be a difficult idea for you who is not a

lawyer to understand but that is the situation. The problem that you face is trying to get your

case into some pigeon-hole that this Court has

jurisdiction to deal with.

MR LAING:	I am going to have a real hard job doing that, Your Honour, I realize that. I really can only
rely on the information, basically, that people
have tendered there and that information is that I do not recognize and I never have that that ship
has ever been correctly arrested, and we are talking about the Supreme Court of Queensland that
has been involved in the arrest of the ship, and officers of the Supreme Court have sworn false
statements which have been tendered before the
Supreme Court of Queensland and their officers have
admitted in the witness-box in the Supreme Court in
Townsville that they have not included all of the
facts and the truth that should have appeared on
those affidavits.

So, immediately, what I am saying,

Your Honour, is: one, I am saying the Supreme

Court of Queensland is employing dishonest people

who have disadvantaged my company and myself; and

secondly, Your Honour - I will take it a step

further - if you run your eye over this, the

evidence of the transcript here that has just been

referred to, you will notice that in every area,

every person's replies are complete except mine

where my replies off the recorded proceedings have

not been completed. They have been cut short and
have made it appear that some of my answers have

not been as - all the facts that I have given on

Laing 11 30/6/93

behalf of the company and myself have not been put

down in writing for Your Honour.

I says this documentation here of the proceedings that have been recorded in the Townsville Supreme Court have been tampered with

and/or deliberately not recorded fully.

HIS HONOUR:	Mr Laing, that is a big thing to say.
MR LAING:	I think it is fairly important, Your Honour,

because it is placing me in a wrong light here.

HIS HONOUR: Well, it is not important because, as you have

heard me say to Mr Baston, I am not concerned in

this application with anything to do with the

merits of the case.

MR LAING:	But they are referring to it, Your Honour, and I am saying it is incomplete, therefore, they have no
right to use it.

HIS HONOUR: Well, you need not worry about it because I

assure you that it is playing no part in my present

consideration of it.

MR LAING:	Thank you, Your Honour.
HIS HONOUR:	My concern is this - and I would ask you to

direct your attention to it, Mr Laing - unless I

can see that your case somehow fits into one of

these pigeon-holes of jurisdiction that I have

spoken about, I have no option but to set your

proceedings aside.

MR LAING:	I understand your position, Your Honour.
HIS HONOUR:	If there are problems about the way in which an

action has proceeded in the Supreme Court, then the

remedy always is that you have a right of appeal to

the Full Court or to the Court of Appeal of the

Supreme Court. But that does not bring it within

one of those pigeon-holes that is applicable to

this Court.

MR LAING:  I understand that, Your Honour. I also

understand that I am trying to bring it in the High

Court at the present time because the Labor

Government that we have ruling our land, when they

brought that Act in there, on or about the time

that they brought it in, they also wiped the Privy right to complain about the government and take the

government to task. So, they have made the little

person's job very difficult, Your Honour. And, you

know, I think that - you know, if the High Court

does not hear it, would I want it to go back to a

Laing 12 30/6/93

corrupt court like the Supreme Court of Queensland?

I mean, there is the problem, Your Honour.

HIS HONOUR:  I cannot accept your standing here and making

assertions of that kind about the court.

MR LAING:	I can back them up with facts, Your Honour.
HIS HONOUR:	Then you must do so in a jurisdiction where you

are entitled to make those allegations if you can

back them up. We are not dealing with the merits

now and unless you are going to restrain yourself to dealing with the question of whether your case comes within the jurisdiction of this Court, I am

going to have to decide the matter without the

benefit of your submissions.	Now, it is a matter
for you, Mr Laing.

MR LAING:  Your Honour, let me just say that they have used

this information here relating to other matters

here why it should not come before this Court.	So
what? They are past matters.	What relevance do
they have on this particular case?	Who says that

the judge that made that decision at that

particular time was correct in his findings? I

mean, anybody can sit down and read books about a

case that happened years ago.	I do not think it is
important.	I think the facts are, one, that the

ship was arrested falsely; two, that there has been

no proof that the money is owning and has never

been admitted by the company that it is owing.

There are many reasons why this case needs to

come before the High Court and they do not want it

to come before the High Court, particularly the

Queensland Government, Your Honour, because there

will be red faces in the government which will

expose corruption, and that is why I am seeking to

bring it in the High Court, Your Honour. I want to

recover my money and damages but I also want the

dishonest faction that exists in this State to be
brought to task.	Now, I cannot do that without
this Court's help.

Your Honour, I would just like you to know

this:  my house, nine months ago, was burnt down

while I was asleep in it, which I believe is being

carried out by the police on behalf of the

Queensland Government. I am not wildly speaking

here; I am talking of fact. Cars that I own, I
have to check to see that there is not a bomb under

them because they are unlocked all the time. There

is people outside my premises - wherever I move

there is people there at 2 or 3 in the morning. three jobs in a row, and cost me the jobs. They

have tried to set me up with bribery.

Laing 13 30/6/93

HIS HONOUR:	Mr Laing, you are going into the merits of the case that you wish to raise.
MR LAING:	I cannot talk about High Court procedure,

Your Honour, because I do not know.	I can only
talk about the truth.	I say this, Your Honour, and

I say this to you: you throw this out, this will

not be the end of the matter, right? Because I

believe you should, if you are a just person and

you know the Court intimately, you should see your

way clear to let this case go on if you believe in

justice and the truth. If you do not, Your Honour,

then I would have to question you as being in your

position.

I already question the laws of this land. I

know the little people in this land have no rights

and your decision will certainly make me wonder

about whether you are a just man and you believe in

the law and whether you want to help the little

people bring the truth out or not. I am going to

leave it to you, Your Honour, because I cannot

argue about High Court mumbo-jumbo out of books

that somebody wrote about somebody's case that

might not have even been the right decision.	I
will leave it to you, Your Honour.

HIS HONOUR:  In this matter the relevant provision appears

to be in Order 11 rule 5 of the Rules of the High

Court. That rule provides:

"A defendant, before appearing, may, without

entering, or obtaining an order to enter, a

conditional appearance, take out a summons or

serve notice of motion -

(a) to set aside the writ or other originating

process"

It appears in this case that the summons is one to

set aside the writ or other originating process.

The earlier provisions of rule 5 do not appear to

me to be conditions precedent to the right to take

out such a summons. Such a summons may be taken

out after appearance if that is thought to be

desirable where there is no jurisdiction in the

Court to entertain the proceedings.

In this case the applicants, who are the fifth

defendant and the second, third and fourth

defendants, apply for an order setting aside the

writ on the ground that there is no jurisdiction in

this Court to entertain the proceedings which have

been commenced by the writ of summons. Having read

the writ of summons and the endorsed affidavit, it

seems to me that none of the claims which are made

by the plaintiff in the statement of claim is

Laing 14 30/6/93

a claim which attracts the jurisdiction of this

Court.

In those circumstances I have no option but to

make an order setting aside the writ and the

proceedings taken on the writ. Accordingly,
pursuant to Order 11 rule 5, I order that the writ

be set aside. That is the order which is made.

MR MORGAN:  Your Honour, I would ask that Your Honour make

an order that the plaintiff pay the fifth

defendant's costs of and incidental to the action

and the application to be taxed.

HIS HONOUR:  I can see that there is a ground for making an

application with respect to the costs of the

application, but you chose to make the application

after entry of appearance. Is there any reason why

the costs should not be limited, if an order is

made, to the costs of the application?

MR MORGAN:  Your Honour, I will need to make some

submissions about the operation of Order 11

rule 5 - - -

MR LAING:  You will not be paid, so you are wasting your

time.

MR MORGAN:  - - - in that respect. In my submission, it

does not provide exclusive	terms on which one can
apply for the dismissal of	the action. If I can
just go to that - - -

HIS HONOUR:  It may not, but it is the order which you

relied upon and it is the one on which I have based

the order that I have made.

MR MORGAN:  Yes, Your Honour. I have a couple of

submissions with respect to that. One is that the

language of Order 11 rule 5, in my respectful

submission, does not mean that it is only when one

enters a conditional appearance that one may make

such an application. It is not limited in its

language to those terms.

The appearance, although unconditional, was in

the nature of an appearance under protest, if I can

put it that way, because it was filed the same day

as the defence which contained an objection in

point of law to the jurisdiction of the Court to

entertain the matter. There is authority - and I

have gone to the white Practice - for it. If I can

hand up a page from the white Practice which refers

to some authorities which allow the sort of order

to be made that Your Honour has made. On the

right-hand side of that page, page 95, the second

Laing 15 30/6/93

and third paragraphs quote English cases to the

effect that:

an unconditional appearance is not a waiver of

the defendant's right to dispute the

plaintiff's claim, though it is sometimes a

waiver of the right to raise a defence against

the validity of the action.

The second case cited there, Wilkinson v Barking

Corporation, the:

defendants entered an unconditional appearance
and pleaded no cause of action for lack of

jurisdiction -

as we have done here. Lord Justice Asquith said:

"The Supreme Court may by statute lack

jurisdiction to deal with a particular

matter ..... It has, however, jurisdiction to

decide whether or not it has jurisdiction to

deal with such matters, and by entering an

unconditional appearance a litigant submits to

the former jurisdiction ..... but not to the

latter -

My submission as to the thrust of those cases is

that there is authority that one need not bind

oneself solely to the step of entering a

conditional appearance if one wants to take the

step that we have taken in this case. For that

reason, we have, I can submit, from the outset

contest that the jurisdiction of the Court to hear

this action, right from the very outset.

HIS HONOUR:  The point is, however, that you could have

entered a conditional appearance and made the

application immediately.

MR MORGAN:  It would have been more formally correct if we

had done so.

HIS HONOUR:	It would have been more correct and it would have been more expeditious and it would have been
cheaper.
MR MORGAN:	If I can just answer Your Honour's comment in

that regard: it may not necessarily have been

cheaper, since it would involve two applications to

the Court rather than one, since a conditional

appearance in this Court's original jurisdiction

can only be - one has to go to Court to obtain

leave to do so, so we would have had to do that and

then make again the application made before

Your Honour today.

Laing 16 30/6/93

HIS HONOUR:  I understand the argument, Mr Morgan, but I am

afraid I am not persuaded by it. I propose to make

an order, subject to what Mr Laing has to say, of a

more limited kind.

MR MORGAN: If Your Honour pleases.

HIS HONOUR:  Mr Laing, have you anything to say as to why an

order for costs should not be made in relation to

this?

MR LAING:  Your Honour, all I can say is that - and I am

wasting my breath, probably - they sold a ship
worth over half a million dollars; it had hundreds

of thousands of dollars worth of refit work on it
plus other property on it that did not belong to
the company. While it was under the Supreme Court

Master's control in Brisbane, tens of thousands of

dollars worth of equipment walked off and

disappeared, which means the local marshal - that

the Supreme Court is also a thief. Your Honour,

they sold it for $108,000 by getting fictitious

mates of theirs to submit ridiculously cheap

offers. They stripped my company to the bone.

I have lived in a car over a year ago for two and a half months because I did not have $5, right?

That is the bottom line. I think they should be

given nothing. They have not earned it, they have

ripped me off, they have destroyed my company.

They defrauded some honest business persons my

company owed money to on monthly accounts by their

dishonest false arrest of that ship and disposal of

it. I do not intend to leave the matter here,

Your Honour; I will just go to plan B, which I am

not prepared to disclose at this particular time.

But you can make whatever Your Honour sees fit. I

do not think they should be given a dollar, but it

is not for me to say, Your Honour; it is in your

hands. I will leave it to you, whatever you think.

HIS HONOUR:  Mr Laing, when an order is made of the kind

that I have made here which is necessary to be made

to set aside the writ, the ordinary consequence of

that is that the party that has issued the writ

must have an order made against him for the payment

of the costs. I propose to make an order that you

should pay the costs of the fifth defendant,

limited, however, to the costs of the making of

this application.

MR LAING:  Your Honour, can I just make one statement? I

just want you to know that even if you make that

order, I do not intend to pay it, Your Honour.

HIS HONOUR:  That is not a matter which presently concerns

me, Mr Laing.

Laing 17 30/6/93

MR BASTON:	Your Honour, I seek an order for costs on behalf of the second, third and fourth defendants who made
an application under Order 11 rule 5 without entering an appearance or taking any step in the action.
MR LAING:	One last thing I would like to go on the

transcript, Your Honour:  I am not easing up. I am

not letting this matter rest until either one of

two things happens in this country. One, a Royal

Commission into this corruption. that exists against

small business persons, and I want the Admiralty Act amended. It is a rip-off for these people to get a golden handshake sitting on their backsides

and doing very little. I would like a copy of the

transcript here today undoctored, word for word,

even with my comments, Your Honour, because I wish

one day for that to be published.

HIS HONOUR: 

Your application, Mr Baston, is limited then to

the costs of this application in any event, is that
right?

MR BASTON: 

Yes, Your Honour, and I ask would Your Honour

certify for counsel?

HIS HONOUR:  Yes. Have you anything to say, Mr Laing, as to

whether I should make an order in favour of

Mr Baston's clients along the same lines as I have

made in the case of Mr Morgan's client? I have

been asked also to certify for counsel, that is to

say that this is an appropriate case in which a

barrister should be retained to come and argue this

case in Court.

MR LAING:  Your Honour, I am well aware of that. I have

sought legal counsel before I came here today.

They told me it is a foregone conclusion, "Don't

waste your money paying us to come along here

today. Just see if you can get it into the Court

and then we'll take it. If you don't get it, spend

the money paying us to take it further in another

avenue, because", they said, "your chances are

about 5 per cent of not getting it knocked out here
today", so I save my money to fight on another
front, Your Honour, but I sure as hell am not
giving up. These people are crooks, they are
representing crooks, and I am going to boot their

backsides.

HIS HONOUR:  Yes. I will make an order, Mr Baston, limited

to costs of this application, and I certify for

counsel.

MR MORGAN:  Your Honour, does that apply to my order for

costs? I would make that application as well.

Laing 18 30/6/93

HIS HONOUR:  Mr Laing, I have to call on you once more to

say whether you have anything to say with regard to

the certification of counsel in the case of

Mr Morgan, that is that it was a suitable case for

a barrister to be retained to come here to Court to

argue the case.

MR LAING:  I am not sure I understand exactly what it is you

are asking of me, Your Honour.

HIS HONOUR:  Sometimes cases are so simple that they do not

require a barrister to come along and argue them.

Sometimes they are more complex. The Court has a

discretion as to whether the case is sufficiently

difficult to justify incurring the costs of

bringing a barrister along to argue it.

MR LAING:  I would only think only a very incompetent

solicitor would have needed to bring a barrister

here today, Your Honour.	They knew I was
unrepresented.

HIS HONOUR:  I think that this is a case in which, having

regard to the examination of the jurisdiction of
this Court under the Constitution and the several
sections which are referred to in the statement of
claim, it is appropriate to certify for counsel.

Accordingly, the order for costs will contain a

certificate in each case certifying for counsel.

AT 5.28 PM THE MATTER WAS ADJOURNED SINE DIE·

Laing 19 30/6/93