Limbo, L. v Hawke, R.J.L

[1989] FCA 807

Re: LENIN LIMBO
And: THE HON. ROBERT JAMES LEE HAWKE, PRIME MINISTER OF
AUSTRALIA; THE HON. KIM CHRISTIAN BEAZLEY, MINISTER OF
STATE FOR DEFENCE and SENATOR THE HON. GARETH JOHN EVANS,
THE MINISTER OF STATE FOR FOREIGN AFFAIRS AND TRADE
No. G160 of 1989
FED No. 807
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Practice and Procedure - application for summary dismissal of proceedings - applicant erroneously sought declarations of criminal conduct and attempted to use the legal process for an improper purpose - deficiencies apparent in statement of claim - applicant has no "locus standi".

HEARING

ADELAIDE

#DATE 22:12:1989

Counsel for the Applicant : Mr. L. Limbo in Person

Counsel for the Respondents : Mr. J. O'Halloran
Solicitors for the Respondents : Australian Government

ORDER

These Proceedings be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Respondents' application that proceedings be summarily dismissed.

1. The respondents who are named in these proceedings are the Prime Minister, the Minister for Defence and the Minister for Foreign Affairs. The applicant calls himself Citizen Lenin Limbo; he describes himself in his statement of claim as "a duly authorised law officer of the High Court of Australia"; he also claims to be a person who "has at all material times acted under a compulsory legal duty and is the (self appointed) interim public guardian and-or public trustee" in these legal proceedings of the rights of "various groups including the civilian populations of Australia and elsewhere, the environment, future generations and others". The applicant seeks wide ranging declarations and orders against the respondents.

2. The issues that have brought the applicant to this Court are based on activities at Nurrungar, Pine Gap and North West Cape. In brief, the applicant claims that these activities should be categorised as the deployment and use of nuclear weapons in circumstances that amount to acts of criminal conduct under Australian and International Law - and that the respondents must bear the responsibility for such criminality. Thus the first three of the many declarations and orders sought by the applicant are as follows:-
   

"(1). The deployment and use of nuclear weapons is criminally illegal under Australian and International Law;

(2). The respondents, through their activities at and about Nurrungar, Pine Gap and North West Cape are criminally complicit in such use and deployment of nuclear weapons;

(3). The respondent,(sic) through the said activities, have a civil liability in tort to the applicant;

1. I regard the declarations sought in paragraphs 1 and 2 above as beyond jurisdiction of this Court in these proceedings. One must seriously doubt whether any properly constituted Court would make a declaration in the general terms that are sought in paragraph 1 and, in my opinion, it would be wholly wrong for this Court to entertain an application to make the declaration sought in paragraph 2 - to the effect that nominated parties have engaged in some form of criminal activity. I do not consider that it is part of our law or of its procedures to seek such declarations; if it is the belief of a citizen that a person has engaged in criminal activity then the proper course is for criminal charges (accompanied by full and detailed particularity) to be laid against the alleged offender. And consistent with established principles of criminal law, the onus is upon the prosecutor to prove those charges beyond reasonable doubt. The alleged offender is not only entitled to remain silent but is further entitled to a presumption of innocence.

2. Such were the views of St. John J. in Inglis v Moore (1979) 24 ALR 411. In that case, the plaintiff had sought declarations the the actions of the defendants constituted criminal conspiracies; his Honour expressed himself to be strongly of the opinion that such declarations were outside the ambit of declaratory relief.

3. In their joint judgment at page 422 Brennan and Davies JJ. expressed themselves in this manner:-
   

"In the particular circumstances of this case, it would be an abuse of the Supreme Court's process to allow Mrs Inglis to pursue, in furtherance of her design, her claims for declarations as they appear in the pleading. Although the making of a declaration is discretionary and the discretion is usually exercised at a later stage in proceedings, it is open to the court to terminate at an early stage proceedings for a declaration which are clearly an abuse of its process (Roesin v Attorney-General (1918) 34 TLR 417). It is equally open to the court, where a discretionary order would, if granted, put in train proceedings in abuse of its process, to refuse the order. That is what Smithers J. did, and did rightly."

1. Even if the views advanced by St. John J. (with which I respectfully agree are incorrect, I would unhesitatingly exercise my discretionary powers at this early stage of the proceedings in the manner stated by Brennan and Davies JJ. I do not, for one moment, disregard the horror of the prospect of nuclear warfare - nor do I doubt the bona fides of the applicant's beliefs. But those matters cannot override the fundamental principles of the criminal law to which I have just referred. In my opinion, the substantive issue in this matter is the attempt by the applicant to raise and to debate publicly an issue that is of immense importance to him. But the correct forum in which to address this issue is not a Court of Law but the public arena: and ultimately that means in Parliament. The use of nuclear weapons is, in my opinion, a matter of social conscience and political ideology; the views of proponents and opponents are worthy of the most serious consideration but they are to be evaluated in the appropriate forum in the same manner as the argument of a pacifist that the use of conventional weapons of war is a criminal act would be evaluated. Such a person is wholly justified in putting forward his views: it is merely a question of determining the correct forum. In my view a Court of Law is not the forum for this debate.

2. I have no doubt that the applicant, and indeed many members of the community, are greatly concerned about the stand taken by Australia in such matters as uranium mining, the use of nuclear energy, the activities - some of which are known and others which are merely perceived - at such places at Nurrungar, Pine Gap and North West Cape. The competing views of politicians and members of the public on these subjects are matters of public record. But the general issues of whether Nurrungar, Pine Gap and North West Cape should be closed down permanently are not legal issues that fall for determination in a Court of Law.

3. I have concluded that the applicant has attempted, innocently, but nevertheless inappropriately, to use the Court and the legal process as a means of achieving a public forum in which he would espouse his views on subjects such as those that I have briefly identified. The legal process must be protected and its use must be controlled. Indeed, if any attempt is made by a litigant to use the legal process for an impermissible purpose, it is labelled "abuse of process". The task of satisfying a Court that there has been an abuse of process is a "heavy one": (Goldsmith v Sperrings Ltd. (1977) 1 WLR 478) and strong evidence is required that the applicant is before the Court for an ulterior purpose. But, in my opinion, that evidence is clearly present in these proceedings. In the many papers and writings that he has filed in Court, the applicant has made it clear that he is seeking publicity in the widest sense and the broad dissemination of information. One of the orders that he sought called for the service of all pleadings on some 60 to 70 persons and institutions; they included Her Majesty the Queen, the Governor-General, Heads of State, Ministers of the Crown, Diplomats, Law and other Associations etc. He presented himself, on the one hand, as a litigant in person, but on the other hand as a "nominal applicant" claiming a right to represent (inter alia) civilian populations in Australia and elsewhere", "the environment", "future generations" and so on.

4. In the document styled "application", his attempts to obtain publicity for his cause is best explained by quoting some of the orders that are sought:-
   

"(10) that a copy of all court documents and transcript be displayed in the main public area of this court.

(11) that the evidence of 'distance' witnesses be given via video and satellite link-up (? financed by sale/rental of copyrights below)

(12) that all hearings in this matter be video/audio-recorded and made available via a direct feed to the media for radio/TV broadcast nationally and internationally (? sale/rental of court copyrights could offset the costs of recording, supervision and transmission).

(13) that 'sub judice' in these proceedings, for the guidance of the media, means... (specify permissible publication guidelines in the circumstances)"

1. Where a Court is satisfied that an applicant has brought proceedings predominantly for an ulterior purpose, the Court may dismiss the proceedings: (Packer v Meagher (1984) 3 NSWLR 486). It does not matter whether or not this mistake was innocent, but of course, a court would more readily dismiss the proceedings if it was satisfied that mala fides existed.Although there is no suggestion that mala fides existed in these proceedings, there are other difficulties confronting the applicant.

2. The first of these are the documents that the applicant has filed in Court and their contents. The situation is best explained by appending to these reasons the first page of his "statement of claim" and the first page of another document entitled "detailed statement of claim". Matters in these documents that offend the Rules of Court are the emotive plea that precedes the "statement of claim" and the general discourse that thereafter follows. Although every consideration should be given to an unrepresented litigant, it is not possible wholly to disregard the Rules of Court. It is important therefore to bear in mind the provisions of 0 4 r 6. It states:-
   

"6. (1) The applicant shall file and serve with the application either an affidavit or a statement of claim, whichever is appropriate.

(2) The affidavit or statement of claim shall show -

(a) the nature of the applicant's claim; and

(b) the material facts on which it is based."

1. In this particular case, the more specific provisions of 0 11 r 1 to 3 are of particular significance:-
   

"1. Where a pleading alleges or otherwise deals with several matters -

(a) the pleading shall be divided into paragraphs;

(b) each matter shall, so far as convenient, be put in a separate paragraph; and

(c) the paragraphs shall be numbered consecutively.

2. Subject to these Rules -

(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved; and

(b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars).

3. A pleading shall be as brief as the nature of the case admits."

1. There is an abundance of authority to the effect that a statement of claim will not be struck out nor will proceedings be summarily dismissed on the ground that the statement of claim does not disclose any, or any reasonable or probable cause of action, unless the ground is clearly made out: General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125: per Barwick C.J. @ 129; Co-ownership Land v Queensland Estates (1973) 1 ALR 201 per Menzies J. @ 206; Salemi v Mackellar (1976) 137 CLR 388; H1976 Nominees Pty. Ltd. v Galli (1979) 30 ALR 181 per Northrop J. @ 188. But, as is evident from the two appendages to these reasons, it is difficult, if not impossible, to regard the papers that have been lodged in Court as a "statement of claim" as that term is used in the Rules.

2. Scattered throughout the papers are matters which, in isolation, can be recognised as relevant to a statement of claim. For example there are allegations against each respondent that he has committed breaches of statutory and other duties; there are claims, that as a consequence of such breaches, the applicant has suffered injury because of "nuclear numbness and nuclear anxiety/depression of a psychopathological kind". But even then, that claim is preceeded by five earlier claims of injuries that the applicant apprehends that he might suffer if "one or more nuclear weapons exploded". There is no cause of action known to the law whereby a plaintiff can sue for damages in respect of the injuries that he might suffer in the event of certain acts occurring at some unspecified time in the future.

3. The next hurdle confronting the applicant is the question of locus standi. In much of his statement of claim, the applicant claims to prosecute proceedings on behalf of the general population, the environment and future generations. The question is whether he has any right to claim that he can properly represent those classes? The leading authority on this subject is the decision of the High Court in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493. In that case it was held that the Conservation Foundation had no standing to maintain an action in which it sought to challenge the establishment of a tourist resort in Central Queensland. Its action was dismissed. In a well known passage that is also of particular relevance to this applicant and his beliefs, Gibbs J. (as he then was) said at pp 530-531:-
   

"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

1. So understood, any claim by the applicant that he has the right to maintain these proceedings for the benefit of others is without foundation. The applicant's claim to possess locus standi is rejected. Having decided this issue against the applicant, that alone is sufficient to warrant an order of summary dismissal of the proceedings under 0 20 r 2(1): Robinson v Western Australian Museum (1977-78) 138 CLR 283 @ 302). But I have identified four areas, any one of which would justify a summary dismissal. The presence of the four areas makes summary dismissal inevitable. I accordingly order the dismissal of these proceedings.

2. The applicant has deposited in Court an abundance of material. In addition to those documents which have been accepted as pleadings there are sundry books, pamphlets, articles and other papers. Much of this would have some value to the applicant; I therefore order that the applicant is entitled to uplift any documents deposited by him in the Registry upon nominating the same to the Registrar.