Lindon, L.J. v The Hon. P. Keating MP

[1995] FCA 528

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
  No VG 576 of 1995

LEONARD JOHN LINDON

Applicant

THE HON PAUL KEATING MP and ORS

Respondents

Coram:    Olney J

Place:    Melbourne

Date:     2 June 1995.

REASONS FOR JUDGMENT

Late yesterday, that is on 1 June 1995, the applicant filed an application seeking injunctive and declaratory relief against the Prime Minister (the first respondent), the Commonwealth of Australia (the second respondent) and seven other respondents.  He relies upon section 39B of the Judiciary Act and s 21 of the Federal Court of Australia Act as the basis for the orders sought.   Service was effected on the Australian Government Solicitor at 5.15pm yesterday.   The Australian Government Solicitor has accepted service on behalf of the Commonwealth of Australia which has appeared by counsel.  The other respondents have not appeared.

The applicant seeks an injunction requiring the respondents to issue him with an invitation to attend a national forum on Civics and Citizenship Education at Parliament House in Canberra on Monday next, 5 June 1995, on the same terms as the other invitees;  and he seeks a declaration that he is entitled to such an invitation.   The application has been
dealt with as an urgent matter and it is appropriate that it be dealt with on an interlocutory basis.   Accordingly, it is inappropriate that any declaratory relief be granted at this stage and I refuse the application that was made to amend the relief sought in order to seek a final declaration today.

The short facts are these.   The Civics Expert Group (CEG) (the third respondent) was established by the Australian government in June 1994 to prepare a strategic plan for a non-partisan program of public education and information on the Australian system of government, the Australian constitution, Australian citizenship and other civic issues.   It delivered a report to the government on 30 November 1994.   On 7 December 1994 the Prime Minister announced that he had received the report and made some general comments on it.   His statement continued:

The group has recommended its report be made available for public comment and discussion for three months.   I am happy to agree and would welcome comments on the report and its implementation by the end of February 1995.

On 11 February 1995 the applicant saw an advertisement which was published in The Age newspaper inviting written comments on the report and its recommendations.   Individuals and organisations were invited to forward their written comments to the Secretary of the Department of Prime Minister and Cabinet (the fourth respondent) by 1 March 1995.   The applicant responded to this invitation on 1 March 1995.   In the final paragraph of his submission he wrote:

Please advise me of the forthcoming national forum.   I would appreciate an invitation and a return ticket if the above comments and experience have defined me as a stakeholder in the area.

Receipt of the applicant's written submission was acknowledged by Mr Tom Iannou (Mr Iannou), a senior adviser in the Department of the Prime Minister and Cabinet (the sixth respondent) by letter dated 3 March 1995 in which he wrote, inter alia:

Your views will be considered by the Civics Expert Group at its next scheduled meeting.

On 9 May 1995 in a joint statement issued by Minister for Employment, Education and Training (the eighth respondent) and the Minister for Schools, Vocational Education and Training (the seventh respondent) it was said that:

The Prime Minister will deliver the government's formal response to the Civics Expert Group report on 5 May 1995 when he opens a two day forum on civics and citizenship education in Parliament House.

The applicant was in fact unaware of this statement at that time.   However, on 29 May 1995 he telephoned Mr Iannou and asked if his submission had been considered by the CEG at its meeting on 23 March 1995.   He says in his affidavit that Mr Iannou replied that his comments had not been considered by the CEG because "only the big ones" had been considered, but that the applicant's comments would be considered at the next meeting on 6 June 1995.

Following an inquiry made to Mr Noel Simpson, (Mr Simpson) an officer of the Department of Employment, Education and Training (the ninth respondent), the applicant was told that the first day of the forum, that is 5 June 1995, would be attended by general community groups such as Rotary and that the second day, 6 June 1995, was solely for educational bodies.   On 30 May 1995 the applicant faxed to Mr Iannou a request that by 5.00pm on 31 May 1995 he be given an explanation of who had read his comments and what had happened since 1 March 1995.   On 30 May 1995 he also faxed to Mr Simpson a letter requesting that by 5.00pm on 31 May 1995 he be given an invitation to the forum on 5 June 1995.

On 31 May 1995 at a panel discussion at Melbourne University entitled "Have Your Say on Civics and Citizenship" the Chairman of the CEG, Professor McIntyre, in response to a question from the applicant, said that the applicant's response to the CEG report had been considered.

On the morning of 1 June 1995 the applicant received from Mr Iannou a letter dated 31 May 1995 in which he wrote, inter alia, in response to the applicant's then recent correspondence:

You also asked a number of questions about the handling of your submission to the Expert Group and the civics education forum scheduled on 5-6 June 1995.   A number of these questions arise from our telephone conversation on 30 May 1995 and I wish to confirm below the points I made during that conversation.

Your submission was received by this department (which provides secretariat assistance to the Expert Group) on 1 March 1995.   In response I sent you a standard form of acknowledgment on 3 March 1995 (copy attached).   As with all other submissions, yours was copied for consideration, to members of the Civics Expert Group and the Department of Employment, Education and Training, (i.e. all submissions have been considered by the Civics Expert Group, this Department and the Department of Employment, Education and Training).

A total of 126 responses to the Expert Group's report have been received from the public.   The majority, including yours, were considered by the Expert Group at its meeting of 23 March 1995.   The Expert Group discussed those submissions that group members identified as significant in terms of their recommendations and view of the task.

Despite the applicant's description of this letter as "lies", I do not find it to be inconsistent with what the applicant says he was told by Mr Iannou on 29 May 1995.   It is clear that only a few responses, not including the applicant's, were discussed at the meeting on 23 March 1995 by the CEG, but that all responses had been sent to members of the CEG and also to the relevant department for consideration.

The applicant's main assertion is that he is entitled to have his response considered but he does not seek relief directed to the consideration of his response.   He seeks an invitation as an individual to a meeting of community groups convened by the government.   Even accepting for present purposes all that has been argued in support of the applicant's claimed legal entitlement to have his response considered (as to which I find it unnecessary to comment) the facts of the case do not support the granting of the relief sought.   The applicant's claim to be entitled to be invited to a meeting to which he would never have been invited whatever consideration may or may not have been give to his response is clearly insupportable.

It may be observed that neither the Prime Minister's statement of 7 December 1994 nor the advertisement published in The Age on 11 February 1995 mentions the holding of a forum to discuss the CEG report.   There is no basis in fact for the granting
of the relief sought.   Because of the need to dispose of this matter expeditiously, I have found it unnecessary to deal with the several legal arguments which the applicant has advanced in support of his claim.   My failure to do so should not be interpreted as suggesting that I agree with any of them.  The application for interlocutory relief will be refused.

[Counsel for the Commonwealth having sought an order for costs, and the applicant having made submissions in opposition to such an order, the Court continued:]

The Court has a discretion to order costs.   It is a discretion which must be exercised judicially in accordance with the usual practices of the Court and whatever debate may be going on in the community as to the desirability of continuing with the present practices, and whatever personal views individual judges may have, the established rule and practice in this jurisdiction is that costs follow the event unless there is some reason for some other order to be made.

There are many cases in which some other order is made.   For example, in circumstances where the successful party has contributed unnecessarily to the incurring of costs or has in some way conducted the proceedings in a manner that may be thought to be unreasonable or unfair, costs will not follow the event, and indeed in some circumstances within my own experience costs have been awarded against a successful party. The matter is one for the Court's discretion and it is one for the exercise of that discretion in a judicial manner in accordance with established principles.
I do not regard this matter as involving a matter of public interest.   The interest was purely personal of the applicant and I disregard any learning that may be advanced on the question of not ordering costs where matters of public interest are at stake.   The applicant was seeking something peculiar to himself and in my view having failed to do that the usual rule that costs follow the event ought to be followed, there being no circumstance which in my view justifies any other order.

The application for interlocutory relief will be refused with costs.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard:       2 June 1995

Place:       Melbourne

Judgment:     2 June 1995

Appearances:

The applicant appeared in person.

Mr K. Bell (instructed by the Australian Government Solicitor) appeared for the Commonwealth of Australia (second respondent).