Lindon, Ex parte- Re Len Lindon v Commonwealth of Australia

[1996] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 1995

Re -

LEN LINDON v COMMONWEALTH OF AUSTRALIA

Ex parte -

LEN LINDON

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 MAY 1996, AT 10.15 AM

Copyright in the High Court of Australia

MR L. LINDON:   I appear, sir.

HIS HONOUR:   You are Mr Lindon?

MR LINDON:   I am.

HIS HONOUR:   Yes, Mr Lindon.

MR LINDON:   There are actually two summons that the Court could deal with.  One is listed for hearing, and there is a second one to do with supplementing of the written case.  I will just deal with the first one and then if your Honour is minded to deal with the second one ‑ ‑ ‑

HIS HONOUR:   This is an ex parte summons issued on 7 May seeking orders that you be permitted forthwith to serve copies of the written case on the respondent and the respondents be required to file and serve a written case within 21 days and the application be listed for hearing for oral argument.  Is that the one?

MR LINDON:   Yes, that is the one.  There is a second one which has also been ‑ ‑ ‑

HIS HONOUR:   Let us deal with this one first.

MR LINDON:   Precisely.

HIS HONOUR:   What is the jurisdiction that I have that you are invoking here?

MR LINDON:   I am not quite sure of the correct procedure to bring this matter before the Court.  Your Honour might note that I have mentioned in a written case previously and I have attempted to issue a writ seeking declarations previously ‑ ‑ ‑

HIS HONOUR:   I have seen that there has been a number of documents, but that seems to me to be the problem.  Unless I can understand what power I am called upon to exercise I really do not know how I can proceed.

MR LINDON:   Perhaps the starting point might be to formally tender a copy of a letter from the Deputy Registrar and on page 2 of that she sets out the powers of the Court.  Page 2 she says:

The written case must be filed.....

the written case shall not be served on any person who is a party to the proceedings in the Court below.

The Court or a Justice can dismiss the application or grant leave to appeal on the basis of the applicant’s written case.....may also direct the application be listed for hearing. 

So that is, I suppose, a direction of the Registrar acting under the authority of the Rules in this particular case.  I do not know if that advances the ‑ ‑ ‑

HIS HONOUR:   That does not take it very far.  I know what the Rules provide.  This seems to be an application that in some way I should set the Rules at naught.

MR LINDON:   That is right.

HIS HONOUR:   And I do not understand what my jurisdiction is to do that.

MR LINDON:   Right Obviously this Court has power to interpret the Constitution and to determine whether legislation falls within or outside the powers under the Constitution of the Commonwealth. I am just seeking to argue that if the Rules are valid, I have no argument. If the Rules are invalid, either under the particular section of the Judiciary Act on which they are made or whether the Judiciary Act itself infringes the Constitution, and here I am talking about implications in the Constitution. If I might take you to paragraph 8 of the ‑ ‑ ‑

HIS HONOUR:   Not so quickly, Mr Lindon.  You say that if the Rules are valid then that is the end of your application, is that right?

MR LINDON:   Absolutely, it must be, because it is quite clear that the Court alone decides whether or not to list the matter and to allow service of the documents and so on.

HIS HONOUR:   Now, if the Rules are invalid, then you say you have got a different argument?

MR LINDON:   What I say, of course, is I say I have an absolute right as a citizen litigant to have the other party served and to have an oral hearing.  I say that the sole criterion currently in the Rules, namely that whether or not one is legally represented, falls foul of certain constitutional implications.

HIS HONOUR:   I can understand that a litigant may wish to attack the validity of the Rules.  I do not understand how I, sitting here on an interlocutory application in a matter which may or may not involve the exercise of judicial power, have the slightest jurisdiction to declare any Rules invalid.

MR LINDON:   That, sir, may be the very short answer to the procedural question which is being raised here.  You see, I have also filed another affidavit yesterday in which I exhibited a writ that I have lodged with the Court’s registry in Melbourne which seeks certain declarations in similar terms to the application I am making today.  You will also see in that affidavit I recite the discussions with the Deputy Registrar where she suggested that attempting to raise this by way of interlocutory summons in the way I have done is not the correct way to do it.  In fact, much earlier, I received advice from another Deputy Registrar that the way to raise this question was by writ seeking declarations ‑ ‑ ‑

HIS HONOUR:   Mr Lindon, there seems to be a couple of misunderstandings.  First of all, I certainly do not see that I have any jurisdiction to make the kind of order that is sought in this ex parte summons.  The second is that whilst the registry are most efficient, in my experience, in being of assistance to those who are seeking their assistance in litigation, they themselves have no final judicial power.

MR LINDON:   Absolutely.

HIS HONOUR:   It is for the litigants themselves or their legal advisers to work out in what way they can raise issues which are justiciable.

MR LINDON:   May I just say on that that the problem I have had so far is that the writ that I attempted to issue to raise this question of the constitutional validity of the Rules was not issued by the registry.  I understand it may have been stamped with the “Not to be issued without leave” stamp.  I also attempted to raise this question - hearing what your Honour said about not relying on the legal advice of the registry but just taking it as perhaps one way of procedure to do it, I attempted to raise it in a written case and the Full Court, in dismissing my application for special leave, did not advert to the point.

Now, your Honour, it may be that the way to raise this is by way of writ seeking declarations and that your Honour - I think I understand your Honour’s point is that because you are bound by the Rules while you are sitting in chambers on an interlocutory summons, therefore it is beyond your power, as the Justice acting under those Rules, assuming they are valid, to take any further step.  If that is so, your Honour, could I ask you then to turn to the question of the writ which I lodged yesterday with the registry, because it may be, sir, that you can very quickly dispose of that point too, by stating, for example, that leave would not be granted to issue a writ of that kind.  The end result for me is I cannot raise the issue in the Court, but it also short-circuits a lengthy process whereby I would have to apply for leave and come back before the Court and so on and so forth.

So it may be that if your Honour - and your Honour must know the law much more than me - if your Honour says, “I have no jurisdiction and no power to deal with this matter by way of interlocutory summons”, would your Honour consider turning to the writ which is annexed to my affidavit which I filed yesterday and was transmitted to the Court so that that ‑ ‑ ‑

HIS HONOUR:   Let us deal with things one at a time.  First of all, so far as the ex parte summons is concerned, if you have nothing further to say about that, I shall simply dismiss it as an incompetent application since I have no jurisdiction of the kind that is there sought to be exercised.

MR LINDON:   Thank you, sir.

HIS HONOUR:   Very well.  That will be dismissed.

Now, before you get to the next point which is your desire that I should consider a writ that you say has been issued ‑ ‑ ‑

MR LINDON:   Has been lodged.

HIS HONOUR:   That you wish to issue, there is the question of the proceedings in which this summons was taken out.  As I understand it, you have got an appeal instituted - or an application for leave to appeal from the decision of Justice Gummow, is that right?

MR LINDON:   Yes.

HIS HONOUR:   Now, the first question that will arise there is whether any appeal lies.  Now that is a question which seems to me to be one that is worthy of some consideration.  You have put in your application for leave to appeal, is that right?

MR LINDON:   Yes, and there is an application book and a written case.  All those procedural steps ‑ ‑ ‑

HIS HONOUR:   All those steps have been taken, have they?

MR LINDON:   It is now up to the Court, if the Rules are valid, yes.

HIS HONOUR:   So it would now ordinarily go to the Court for consideration on your written submissions.

MR LINDON:   It would, except for my second summons which will come to whether I seek leave to supplement, but generally in the normal course, there is nothing further that I can say or do in relation to that.  It is entirely a matter for the Court as to whether ‑ ‑ ‑

HIS HONOUR:   Yes, all right. 

MR LINDON:   However, if I am able to issue the writ which I lodged yesterday in which I seek declarations as to the invalidity of those Rules that discriminate between litigants in person and represented litigants, then it may be that, logically in common sense, one would think that that writ ought to be - the declarations ought to be considered before any determination is made on the application for leave.  I might be wrong about that but you would think that - and for me the question then becomes, well, would the writ be issued?  I mean, I am very doubtful that it would be, given my previous experience, and it may then, rather than having to waste time as I have said before ‑ ‑ ‑

HIS HONOUR:   What were the writs that Justice Gummow dealt with?  Did they raise the same point?

MR LINDON:   No, Justice Gummow was dealing with whether I could issue a writ in relation to systemic bias against women in terms of appointment.  I mean, he held that no such relief could be granted and there was probably no cause of action as well, and he refused me leave to issue that writ and I am seeking leave to appeal from that decision.

The writ that I am referring to now is a writ that was also lodged at the same time as this gender-bias one but concerns this question of litigants in person’s rights, vis-a-vis, represented litigants - - -

HIS HONOUR:   What I want to know is this writ that you are now asking me to look at in the same or similar terms to writs that have been previously the subject of consideration by Justice Gummow?

MR LINDON:   No, no.  The writ that I am asking you to look at now which is exhibited to my affidavit of yesterday is in almost identical terms to the writ that is exhibited in my affidavit, filed on 1 May, which is before you on the application.  That is the one in which I exhibited a letter from the Human Rights Commission and then I, secondly, exhibited a writ that I had attempted to have issued last October and that concerns this question about whether it is a denial of certain constitutional natural justice principles to prohibit litigants in person from anything other than a written case.  Obviously the Court has got a discretion but, essentially, that is the point I am raising.

HIS HONOUR:   Let me see these writs first of all and see what they are.  Now the one that you say you wished to issue yesterday is attached to your affidavit.

MR LINDON:   Yes, my affidavit of yesterday and it is headed “Exhibit LL1/9th May”.

HIS HONOUR:   That is a letter, is it not?

MR LINDON:   No.

HIS HONOUR:   It is a letter to Senator Newman, is that right?

MR LINDON:   That is the second summons that I wanted to raise with you, sir.  That is to do with the supplementing of my written case.

HIS HONOUR:   I see.  Yes, I see the document you are referring to.

MR LINDON:   Right.  If I might just refresh your memory, sir.  The last paragraph of the affidavit to which that writ is exhibited, I say that:

I am at pains not to be criticised for taking this action but I believe that by placing this writ before the Court it may assist the Court in determining which, if any, is the proper procedure to follow.

I also say that:

The Justice may indicate that the unrepresented person issue should properly be raised by separate writ rather than by this summons.

So, that is where we are at at the moment. 

HIS HONOUR:   This writ seeks declaratory orders.

MR LINDON:   Yes.  In paragraph 8, sir, on page 5 of the writ, are the substantive declarations I seek, numbered (1) to (3) in paragraph 8, and on page 2 of the writ, numbered (l) to (3) are the consequential declaratory orders which are identical to the orders I have sought in this summons before you which you have just dismissed. 

HIS HONOUR:   I do not understand correspondence between the relief claimed in the writ and the relief claimed in the statement of claim.

MR LINDON:   Right.  Well, in paragraph 8 I am making three, if you like, declaratory assertions of what the law is and I say that if I am right in any one of those three assertions, then what must follow is a consideration of the consequential orders to be made.  But I am saying if I am right in those assertions in paragraph 8, sir, then it is no longer a matter of the Court’s discretion as to whether or not the written case be served on the Commonwealth, whether or not I be given an oral hearing and whether or not - - -

HIS HONOUR:   Let me say to you, Mr Lindon, the provisions of the Rules with which you are no doubt familiar contain Order 58 rule 4(3) and it relates to the issue of a writ which, on its face, appears to be an abuse of process or frivolous and vexatious.

MR LINDON:   That is right.

HIS HONOUR:   So that I look not at paragraph 8 of the statement of claim, I look at the writ itself.

MR LINDON:   Yes.

HIS HONOUR:   Looking at the writ itself, it seeks some kind of relief:  “That the plaintiff be forthwith permitted” et cetera.

MR LINDON:   Yes, it seeks certain declarations.  Firstly, it seeks certain declarations which are paragraph 8 and it also seeks consequential declaratory orders.  Do you agree with that?  That is the paragraph, the operative introductory paragraph, sir, the plaintiff’s claims
for certain declarations as set out in paragraph 8 and, for the following.  So, I am asking for both the paragraph 8 declarations and the consequential - - -

HIS HONOUR:   I see, yes.  The difficulty, it seems to me, about paragraph 8 of the statement of claim, taking it to be incorporated into the relief sought in the writ, is that it attributes to rules 13 and 14 a prohibitive effect which, on reference to rules 13 and 14, they do not on their face appear to have.  The question of how the Court deals with applications for leave or special leave to appeal are matters of procedure which the Court has dealt with here.  So far as I know, this is the only Court - only final court of appeal in the common law world which has any oral hearing of any kind on any application for special leave.

MR LINDON:   That is probably right, yes.

HIS HONOUR:   Unless there is some particular order made for it.  These Rules provide for the manner in which litigants in person shall have their applications considered.  It does not seem to me to contain any prohibition of any kind.

MR LINDON:   Well, that is, in a way, why I began with the letter from the Deputy Registrar, sir, because that makes quite clear that - it says:

the written case shall not be served on any person who was a party to the proceedings in the Court below.

And then it goes on to say that:

The Court or a Justice can dismiss the application or grant leave to appeal on the basis of the applicant’s written case.  The Court or a Justice may also direct that the application be listed for hearing.

Now, just leaving the oral hearing point and coming to the service of the written case, there is a clear prohibition in the letter, “the written case shall not be served on any party unless a Justice otherwise directs”.  Now, we could argue about the meaning of language there - and, your Honour, I mean, I can really do no more than raise this.  I mean, I bow to your superior knowledge of the law.  But it seems to me that the starting position, having read those Rules, for the litigant in person is that where you are not legally represented, you have no right to an oral hearing, you have no right to serve the party below with the proceedings.

HIS HONOUR:   It is no right to serve the party below so as to cast upon that party the obligation of a served party under the Rules.  I mean there is nothing in the Rules which prevents somebody physically from giving a piece of paper to another person.  What it does do is impede the legal effect of the service and that is what it does. 

MR LINDON:   However, I think it is undeniable, sir, and taking the ordinary Livesey test formulation about the perception of the public and so on, I think there would be no doubt that on that perceptual approach the ordinary member of the public or litigant in person would consider that those litigants with lawyers have at least a head start, but I would say, given the way ‑ ‑ ‑

HIS HONOUR:   That may or may not be so, I am not debating that question or raising that question with you at all, my concern is that ‑ ‑ ‑

MR LINDON:   It is not a prohibition.

HIS HONOUR:    ‑ ‑ ‑the writ at the moment seems to push at a door that is not even closed.

MR LINDON:   I hear you on that, sir.  I disagree, but you disagree with me.  Do you find anything in the other two subclauses of paragraph 8.  I take your point about the prohibition.  I do not concede it, but I hear what you say.  We disagree as to whether it does or not prohibit, and obviously yours is the authoritative view on that.  Subparagraphs (2) and (3) of paragraph 8, subparagraph (2) again makes the prohibition point in a different way.

HIS HONOUR:   That is right.

MR LINDON:   But subparagraph (3) attempts to flag the constitutional implications of the adversarial process in Federal Courts, a sort of due process point.

HIS HONOUR:  I am afraid it is founded on the allegations in the statement of claim.  Reading that document - I mean I looked at this document because you asked me to do so.  If there was some facility to be obtained by doing so, I was prepared to consider it.  But on looking at it, Mr Lindon, I certainly do not propose to, as it were, cut any corners in relation to this matter.

MR LINDON:   Thank you, sir.  In fact, I cannot even invite your Honour to short-circuit the process of having the writ referred to a Justice for a direction.  I suppose that has to be complied with exactly, rather than you stamping Order 58 rule 4 on top of it today.

HIS HONOUR:   I think that is probably so, Mr Lindon.  But if I could offer this word of suggestion to you and that is that - I see that your address is now such that it leaves me to believe that you have been admitted to the Bar.  Is that so?

MR LINDON:   That is so, sir. 

HIS HONOUR:   Perhaps if you were to take some advice as to the manner in which a writ could be drawn which might raise the issues that you wish to raise.  That would certainly, I think, be of assistance to you and it might clarify the matter for the Court. 

MR LINDON:   We will do that then.

HIS HONOUR:   It is not sufficient to have an idea, as it were, in the back of your head that there is something here that is wrong.  The Court is not geared to deal with arguments about things that are wrong unless they are raised in a fashion which is intelligible and easily justiciable.  It is for that reason, largely, that these procedures have been devised. 

MR LINDON:   May I just raise two further points, sir?

HIS HONOUR:   Yes.

MR LINDON:   I was intending to call for production of a letter from Sir Ronald Wilson writing from the Human Rights Commission on an inquiry they were making into whether these Rules do deny litigants in person, in some circumstances, a right of oral hearing and also call for the production of the Court’s response.  I believe it was an administrative response suggesting, as appears in the letter before the Court, that there is going to be some review of the Court’s Rules and it may be taken into account in that way.

All I say in relation to whether my ideas are intelligibly and justiciably expressed is that that is another way that has been, I suppose, tried to bring this to the Court’s attention.  And I understand it has reached the Court’s attention and will be taken into account.  I just make the point that I think I am entitled to call for production of those documents.  I may not be.  They may be documents of the Court and therefore out of my reach. 

But, secondly, I would argue that the very fact that the Human Rights Commission has seen fit to make an inquiry and there has been correspondence supports the fact that at least in some quarters my ideas do seem to be more than just half-baked ideas but are actually intelligible and ‑ ‑ ‑

HIS HONOUR:   Mr Lindon, I was not questioning your ideas, that is not my function.

MR LINDON:   Or my presentation in legal form, sir, yes.

HIS HONOUR:   The manner in which legal propositions are advanced for the Court’s consideration are critical to the Court’s ability to deal with an extremely heavy workload.

MR LINDON:   I appreciate the Court’s time.  Would the Court consider releasing copies of those two letters to me, sir?  Is that something that you would be able to - - -?

HIS HONOUR:   It is not a question for the judicial function.

MR LINDON:   Okay.  My final thing, sir:  you will see there is a second summons before you seeking to supplement my written case.  Rather than me having to come back on another occasion, is this something that you would consider dealing with this morning?

HIS HONOUR:   I do not see any difficulty about you putting in whatever papers you want to put in in relation to your written case.  My only suggestion to you would be to bear in mind what I have already said.

MR LINDON:   I do hear that, sir.  I am trying, but I obviously have not succeeded on this occasion.  Would your Honour then make a formal order in terms sought in that summons that I do have - you will see there is a second - - -

HIS HONOUR:   No, I am not going to make a formal order about it because the written case has been filed.  You can put in other documents and there is no reason to suspect that those documents will not be considered by the Court in considering your application for leave to appeal.

MR LINDON:   The time limit for the filing of my written case has expired, so I did not want to be caught short with the Court saying - - -

HIS HONOUR:   I see, very well.  Then your time for filing the written case, so far as it applies to this supplementary material, will be extended to today.  So, that you can take it that that addition which I take it is on the record here, is it?

MR LINDON:   It is.

HIS HONOUR:   You can take it that that will be considered by the panel.

MR LINDON:   And the only thing that is missing from the record are the replies to those letters.  I have one reply and I am expecting two more.  So, I have sought leave to file those replies when they come.

HIS HONOUR:   No, I will not give you leave to do that for the very simple reason that I think that both the letters and the replies are irrelevant to any consideration the Court might give to the matter.

MR LINDON:   I do have one reply to file, sir.  You still refuse me leave to file - - -?

HIS HONOUR:   I do not propose to extend the Court’s file by taking on board something which is immaterial.

MR LINDON:   Thank you, sir.

HIS HONOUR:   Very well.  The Court will adjourn to a date to be fixed.

AT 10.44 AM THE MATTER WAS CONCLUDED