Lindon L J v Hon. Kerr, J D C MP
[1995] FCA 22
•7 Feb 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 245 of 1994
)
GENERAL DIVISION )
BETWEEN: LEONARD JOHN LINDON
(Applicant)
AND:HON JDC KERR MP - MINISTER FOR JUSTICE
(First Respondent)
HON MH LAVARCH MP - ATTORNEY-GENERAL
(Second Respondent)
MICHAEL ROZENES QC - DPP
(Third Respondent)
ASHLEY HEATH
(Fourth Respondent)
COMMONWEALTH OF AUSTRALIA
(Fifth Respondent)
Coram: RYAN J
Place: MELBOURNE
Date: 07 FEBRUARY 1995
MINUTE OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
That the applicant pay the respondent's costs of the application, such costs to be taxed in default of agreement.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 245 of 1994
)
GENERAL DIVISION )
BETWEEN: LEONARD JOHN LINDON
(Applicant)
AND:HON JDC KERR MP - MINISTER FOR JUSTICE
(First Respondent)
HON MH LAVARCH MP - ATTORNEY-GENERAL
(Second Respondent)
MICHAEL ROZENES QC - DPP
(Third Respondent)
ASHLEY HEATH
(Fourth Respondent)
COMMONWEALTH OF AUSTRALIA
(Fifth Respondent)
Coram: RYAN J
Place: MELBOURNE
Date: 07 FEBRUARY 1995
REASONS FOR JUDGMENT
RYAN J: By application dated 2 August 1994 the applicant seeks the following orders:
A permanent injunction restraining the respondents from instituting bankruptcy proceedings against the applicant for outstanding costs.
An interim injunction restraining the respondents from instituting bankruptcy proceedings against the applicant for outstanding costs pending determinations by both the Australian Ombudsman and the United Nations Human Rights Committee."
The prospect of the institution of bankruptcy proceedings against the applicant arises from unsatisfied orders for costs totalling $33,424.78 made against him following conviction on a charge of trespassing without lawful excuse on Commonwealth land being the Capital Joint Defence Space Research facility near Alice Springs known as "Pine Gap". Part of the complicated history of that litigation has been set out a Full Court of this Court sitting on appeal from the Supreme Court of The Northern Territory in Limbo v Little (1989) 65 NTR 19.
For present purposes it is sufficient to note that the applicant was initially convicted of trespass by a magistrate. That conviction was set aside on appeal and the charge was remitted to the Magistrates' Court for rehearing. Before the rehearing of that charge the applicant, who was then known as Citizen Limbo, sought to raise several matters on interlocutory applications to each of the Magistrates' Court and the Supreme Court of the Northern Territory. Each of the interlocutory applications was unsuccessful and the applicant sought to review those decisions either by way of purported appeal or by way of case stated for the consideration of the Full Court. The applicant failed on each of the matters raised before the Full Court and, on the delivery of judgment, the respondent applied for and was granted an order for its costs.
The applicant then unsuccessfully sought in the High Court special leave to appeal from the orders of the Full Court. Subsequently, on a rehearing of the prosecution before a court of summary jurisdiction he was convicted in his absence and fined $350.00. As well, he was ordered to pay costs of $3,856.44. Thus the sum of $33,424.78 claimed against the applicant as particularized in a letter to him from the Australian Government Solicitor dated 15 June 1993 is made up as follows:
Supreme Court (NT) No 26 of 1990 - $ 9,598.17
Supreme Court (NT) No 48A of 1988 - $ 3,245.32
Supreme Court (NT) No A/S 48 of 1988 - $16,724.85
Prosecution proceedings pursuant to
the Crimes Act 1914 - $ 3,856.44
TOTAL$33,424.78
Item 1 refers to a successful application by the respondent to set aside a summons for attendance directed to the then Prime Minister. Items 2 and 3 refer to the Supreme Court proceedings referred to above and the last item is in respect of costs incurred in the prosecution for trespass in the Magistrates' Court.
The applicant has, on 29 July 1994, made a communication to the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights ("the ICCPR") which has been ratified by Australia. That communication advanced the contention that a threat of bankruptcy proceedings based on a liability for legal costs of an impecunious litigant who has sought to agitate issues of human rights and has not been granted legal aid is unacceptable behaviour in a State which is a party to the Covenant.
The Human Rights Committee receives and considers
communications from individuals who claim that their human rights, as articulated in the ICCPR, have been violated by a State. The applicant, in his communication, claims to have suffered violation of the rights provided for in Articles 6 and 14 of the ICCPR. Paragraph 1 of article 6 provide:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
...
When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide."
Article 14, as far as is relevant, provides:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
...
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality.
...
(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it."
The work of the Committee as explained in its "Human Rights Fax Sheet No 15" is:
"Assessing a complaint
Once a communication has been declared admissible, the Committee asks the State concerned to explain or clarify the problem and to indicate whether anything has been done to settle it. A time limit of six months is set for the State party's reply. Then the author of the complaint has an opportunity to comment on the State's reply. After that, the Committee expresses its final views and sends them to the
State concerned and to the author.
The Committee puts individuals who complain and the States which are alleged to have violated their rights on an equal footing throughout its proceedings. Each has an opportunity to comment on the other's arguments.
The findings of the Committee - its views on communications which have been declared admissible and examined on their merits, as well as decisions declaring other communications inadmissible - are always made public immediately after the session at which the findings were adopted and are reproduced in the Committee's annual report to the General Assembly. In addition, a selection of the Committee's decisions under the Optional Protocol is being published in a series of volumes."
Under the heading "Results" in the same document it is recited:
"Results
Several countries have changed their laws as a result of decisions by the Committee on individual complaints under the Optional Protocol. In a number of cases, prisoners have been released and compensation paid to victims of human rights violations. Recently, the Committee has instituted a mechanism whereby it seeks to monitor more closely whether States parties have given effect to its final decisions on the merits; the first reactions from States parties have been encouraging."
The applicant simultaneously raised with the Commonwealth Ombudsman four questions.
(a)whether arrangements proposed by the fourth respondent for payment by instalments of the outstanding costs were unreasonable;
(b)whether the failure to supply reasons for the demand for payment and the threatened institution of bankruptcy proceedings was unreasonable;
(c)whether the fourth respondent has acted unreasonably in declining to respond to a request for information made by the applicant in a letter dated 27 July 1993;
(d)whether the fourth respondent acted unreasonably in having the costs payable by the applicant taxed and in pressing to recover those costs.
It emerged in argument that the Ombudsman is presently only considering the matters described in (c) and (d) above. In relation to (c) some understanding of the nature of the request can be gained from the relevant part of the applicant's letter of 27 July 1993:
"Could you also answer the following questions:
Who is the Legal Officer who made the decision to threaten me with bankruptcy?
Who was the Legal Officer who authorised the decision to seek costs from me in the NT Supreme Court and Magistrates Court?
What training in human rights issues are Department Legal Officers expected to undergo?
What is the attitude to human rights issues required of a solicitor employed by the Attorney-General's Department?
Is there any policy of the Department as to how to proceed when a citizen raises a human rights issue in the public interest in a matter in which the Department is representing a party?
Is there any policy of the Department in relation to public interest human rights litigation by a citizen in relation to:
a.the seeking of costs against a citizen who has not been declared a vexatious litigant;
b.the pursuit of such costs, if awarded, against an impecunious litigant; and
c.the bankruptcy of an impecunious litigant?"
It is against that factual background that I turn to consider the applicant's claim. Section 39B of the Judiciary Act, on which the applicant presently relies in bringing this application, grants to this Court original jurisdiction with respect to any matter in which an injunction is sought against an officer of the Commonwealth. By focusing on the relief to which s 39B is directed, it is easy to overlook the need to
identify the underlying justiciable right or interest, connoted by the term "matter", which founds the jurisdiction of this Court.
The categories of rights or interests which the Court will seek to protect or enforce by a remedial order like an injunction are not capable of being exhaustively defined and will develop and change as the law itself changes. Nevertheless, the rights or interests which are sought to be protected must be of a type capable of being identified and enforced by traditional curial methods.
The applicant's argument rested, as I perceived it, on the basis that an injunction should issue pending the determinations of the Ombudsman and the Human Rights Committee. The applicant also raised the possibility of formulating causes of action in negligence and breach of fiduciary duty. I shall return to those aspects of the applicant's claim later in these reasons.
Each of the applications to the Human Rights Committee and the Ombudsman, in one sense, reflects two sets of rights or interests. First, there is the facultative right or ability to make the application itself. In relation to the Ombudsman that facility is provided by s 7 of the Ombudsman Act. The ability to forward a communication to the Human Rights Committee does not follow from any right created by statute but is a consequence of Australia's ratification of the ICCPR
and Australia's accession to the first Optional Protocol to the Covenant which became effective on 25 December 1991.
The second tier of rights or interests can be identified by reference to the subject matter of the complaints. The two matters which arise for investigation by the Ombudsman are the alleged refusal of the fourth respondent, a legal officer employed by the Commonwealth, to respond to the request for information contained in the applicant's letter of July 1993 and secondly whether the fourth respondent had acted unreasonably in pursuing the recovery of costs.
The substantive interests which are sought to be protected by the communication to the Human Rights Committee were said by the applicant to be those embodied in Articles 6 and 14 of the ICCPR. I have set out the relevant parts of those articles above.
Having thus identified the interests on which the applicant appears to rely in making and pursuing his complaints to the Ombudsman and the Human Rights Committee, it becomes necessary to decide whether the applicant has established, on this interlocutory application, that the rights contended for are of a type or recognized by the law and that the applicant's prospect of establishing an infringement of those rights is sufficient to warrant the intervention of the Court.
There can be no suggestion that the applicant's procedural or
facultative rights have been compromised by the threat of bankruptcy proceedings. The applicant's ability to communicate to the Ombudsman and the Human Rights Committee will, it appears, remain unaffected, even if a sequestration order is ultimately made against him. Moreover, this is not a case where either the threat of bankruptcy or the change in status consequent upon sequestration would alter the subject of the complaints so as to make any adjudication on them nugatory. Accordingly, I can discern no threat to what I have called the facultative rights of the applicant which warrants the grant of interlocutory relief. The position may be contrasted with that where bankruptcy would entail the vesting of the relevant cause of action in a trustee. Even in a case of that kind an injunction restraining the institution of bankruptcy proceedings would very rarely be granted.
The rights stipulated in the ICCPR do not, by force of their articulation in that Covenant, form part of Australian domestic law: see Dietrich v The Queen (1992) 177 CLR 292. It may be that certain rights specified the Covenant mirror those recognized at common law in Australia. As well, their recognition in an international treaty may encourage Australian courts to hold that analogous rights are conferred by the common law of this country. However, Australian domestic law does not recognise the rights contained in the Covenant in the sense of making them directly enforceable in Australian courts in a state or federal court. Accordingly, an action does not lie in this Court at the suit of the
applicant claiming infringement of rights said to be conferred by Article 14 or Article 6 of the Covenant.
In any event it cannot truly be said that the recovery of costs could constitute a violation or infringement of the applicant's rights as articulated in Article 6. Similarly, as the argument was developed by the applicant, the current application in this Court and the complaints to the Ombudsman and Human Rights Committee do not really seek, and could not achieve, the vindication or protection of the rights in Article 14. The real right or interest which the applicant seeks to assert is the right to act with immunity from the domestic law of trespass in order to bring to public attention the possible detrimental effects which the defence installation at Pine Gap may have on the right to life of Australian citizens. A right or interest of that kind is not presently recognised by the general law.
In so far as the applicant prospectively founds his application in negligence or breach of fiduciary duty, there is nothing before the Court enabling it to be satisfied to the requisite degree that the applicant has raised a serious question to be tried warranting the grant of interlocutory relief.
For these reasons the application must be dismissed with costs.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of his Honour Justice Ryan
Associate:
Date:
The applicant appeared in person.
Counsel for the respondents: Mr K Bell
Solicitor for the respondents: Australian Government Solicitor
DATES OF HEARING:
04.08.1994 and 07.02.1995
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