Lindon v Cwealth of Aus

[1997] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M41 of 1996

B e t w e e n -

LEN LINDON

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for leave to appeal

BRENNAN CJ

DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 9.35 AM

Copyright in the High Court of Australia

MR L. LINDON:   I appear for myself.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  If the Court pleases, I appear with MR H.C. BURMESTER for the respondent.  (instructed by the Australian Government Solicitor)

If the Court pleases, the Commonwealth takes the view that no leave is required because we would argue, if the Court desired us to make submissions, that this would be a final judgment.  But I do not know whether that is any ‑ ‑ ‑

BRENNAN CJ:   What do you have to say about Tampion v Anderson?

MR GRIFFITH:   Your Honour, it really is a matter difficult for us to mount a substantive argument against leave because we take the view, your Honours, that however one looks at this, one gets to the result that it does finally dispose of the matter.

BRENNAN CJ:   That may be so, but the way in which we dispose of it may be important.

MR GRIFFITH:   Your Honour, we desire to assist, but as paragraph 1 of our submissions flagged, we have difficulties in going very far in any argument and saying that leave is required.

BRENNAN CJ:   You mean you do not wish to.

MR GRIFFITH:   Even if the Court directed us to, we would have some difficulties in going very far in arguing it.  Your Honours, having said that, we would indicate, as is flagged in paragraph 3 of our submissions, that this is a matter where, if this Bench is unanimous, we would suggest the Court could dispose of the matter of the appeal on its merits under section 23(1) of the Judiciary Act.  But that would require the Court to be unanimous that it was appropriate to proceed in that way because we think, sub silento, there is a constitutional issue on the meaning of “matter”.

MR LINDON:   I do not want to let my friend the Solicitor-General get too far into this, because I have got an application about bias, disqualification, to put to the Court.  I did not want to be accused of letting the case run without bringing it to the Court’s attention.

BRENNAN CJ:   No, you will not be doing that.  Mr Lindon, on the question which the Commonwealth raises as to whether you need leave in this case, do you have any approach that you wish to take?

MR LINDON:   No.  I was ex abundanti cautela doing everything that might need to be done in the matter, so if we are to go straight to an appeal, so be it.  But, as I say, there is a preliminary point that I want to get off the ground.  So I do not know if we can really deal with this matter until I have raised my preliminary matter.

BRENNAN CJ:   Now, we understand that Mr Lindon has an application to make with respect to bias.  That, of course, will be the first matter for consideration.  But as the Court is presently constituted, at all events, the Court would be minded to proceed in this matter as though it were an appeal but without determining the question of whether leave to appeal is needed or otherwise.

Now, Mr Lindon, what is your application?

MR LINDON:   I have an application that both yourself and Justice Brennan disqualify yourselves from this case.

BRENNAN CJ:   I am Justice Brennan.

MR LINDON:   I am very sorry.  Yourself and Justice Dawson - it was a slip of the tongue - disqualify yourselves from hearing this matter further and that it be put off to perhaps the August list with a different Bench.  I say this, your Honour, because there might be some suggestion if I allow this matter to proceed to any point at all I might be taken to have waived the question of bias, which I do not wish to do.  I have an apprehension, sir, that both you and Justice Dawson - and this is no - obviously it is nothing personal, it is a technical matter - I have an apprehension that neither you nor Justice Dawson can bring the appropriate mind required by Livesey v The Bar Association to this case.  I say this with some trepidation.

BRENNAN CJ:   You need not feel any trepidation, Mr Lindon.

MR LINDON:   Sir, it is verging on the offensive to put this matter to you, in one sense, but there is a history to this case and you will remember that when this whole question for me began in 1987, in 1989 there was a Full Court appeal in the Northern Territory and I sought leave to appeal from this honourable Court.  Because of the bias that I had been experiencing in the Northern Territory at that stage - for example, Justice Martin, the lead judge, was actually involved as a solicitor in setting up Pine Gap and should have disqualified himself.  There were various matters in the Northern Territory that disturbed me.  I applied direct to the Court in Canberra, sent my papers direct to the Court in Canberra, rather than going through the Darwin Registry of the Court, and I then had to come to the Court to seek leave out of time because the then Registrar refused to accept my documents because he did not accept them by post.  I then sought leave from you, sir, and in the course of that I vividly recall you saying that I deluged the Court file with irrelevant material and you were very scathing about both my legal arguments and, I believe, sir, about my legal skills.  The transcript of that is available and could be referred to, sir.

Just following from that I then sought leave to appeal against your decision from Justice Dawson here in Melbourne.  I believe the transcript of that day will show, once again, that the matter was not taken seriously, nor was it dealt with judicially, and that my apprehension is that this Court will not hear cases concerning anything to do with Pine Gap, military intelligence and security matters, nor nuclear weapons.  My experiences before you, sir, and before Justice Dawson give me great grounds for that apprehension.  I do not feel as though you, nor the other honourable Justice, are capable, given the experience I have had at your hands before, of bringing an open mind to the question of whether nuclear weapons are criminally illegal under both Australian law and international law.  We all know the authorities very well, but those are the essential facts. 

There have been matters since then, sir.  This matter has gone on, as you know.  It is my belief that the High Court Rules have been changed because of my agitation about litigants in person having lesser rights than people represented by counsel.  I appeared before you in May last year and made those point and I think the transcript shows that we had quite differing views about that.  Subsequently, in the second half of the year, those matters were explored and there was in fact a change to the rules after a complaint by me to the Human Rights Commission.  I believe that the ‑ ‑ ‑

BRENNAN CJ:   Just before you go on, Mr Lindon, I am trying to recollect the occasions when you have appeared in courts in which I have presided or on which I have been a member.  I can remember two only.  One was when you applied with others ‑ ‑ ‑

MR LINDON:   Ray Limbo.

BRENNAN CJ:   That is right, yes, Re Limbo, in relation to the waiver of a fee for the issuing of preliminary process.  I can remember that.  Now, is that the case in which you say there were some observations by me?

MR LINDON:   No, sir.  That was Ray Limbo.  Some months after that I appeared before you seeking ‑ ‑ ‑

BRENNAN CJ:   In chambers?

MR LINDON:   In chambers in Canberra, yes.  There is a transcript.

BRENNAN CJ:   Then can you show it to me, because I have not got ‑ ‑ ‑

MR LINDON:   I do not have it with me because I had ‑ ‑ ‑

BRENNAN CJ:   I do not remember it, I am afraid.

MR LINDON:   I will call for production from the Court’s files or I can pause to go and get it. 

BRENNAN CJ:   Just a moment.  Do you have any records?

DEPUTY REGISTRAR:   Sorry, your Honour, they are older files.  They are not Melbourne files.

BRENNAN CJ:   Not Melbourne files, I see.

MR LINDON:   I have raised these matters in detail in a memorandum to the Deputy Registrar, I think, either last year or very late the year before.

BRENNAN CJ:   I cannot decide this question for myself without seeing some material.  As I say, I can remember that first occasion that I speak of and I can remember an occasion when I was a member of the Full Court, presided over by my predecessor, Sir Anthony Mason.

MR LINDON:   Where I sought leave to intervene?

BRENNAN CJ:   I do not remember the nature of it at this stage.  I think that is so, though.

MR LINDON:   Polyukhovich, sir, yes.

BRENNAN CJ:   And you were refused leave.

MR LINDON:   I was, yes.

BRENNAN CJ:   Yes.  I can remember that.  But those are the only two occasions I can remember.  So if there is something further on which you wish me to base my view as to whether I should continue to sit, I really need to see it.  I simply do not remember it.

MR LINDON:   Sir, I had attempted to find out prior to today on several occasions what the composition of the Bench would be.  I believe that my objections to both yourself and Justice Dawson in this matter on nuclear weapons are well known to the Melbourne Registry and I filed documents, as I say, as late as last year in which I particularised the comments that you yourself had made and the treatment I had received at the hands of Justice Dawson.

BRENNAN CJ:   There is no sense in speaking in pejorative terms of treatment, it is a question of your being able to identify what is the appropriate objection and it is for us to say whether or not your objection is well founded.  Have you got any records at all of either what you have put in or otherwise?

MR LINDON:   I have round in my chambers but I came prepared to run a leave to appeal application and an appeal application.  Despite my attempts to avoid a situation by finding out who the Bench was beforehand, I apparently was not allowed to know that, and I assumed that the Registry was aware of my objections and would have passed them on to you, sir, but that is not the case.  Now, either we can stand this down for 10 minutes while I run next door and get these papers or we can proceed on another basis.

BRENNAN CJ:   When you say that you challenged something that occurred in proceedings before me, you sought leave from Justice Dawson in some way.

MR LINDON:   Yes.

BRENNAN CJ:   In Melbourne?

MR LINDON:   Yes, sir.

BRENNAN CJ:   Do you remember when that was?

MR LINDON:   Either 1990 or 1991.  It is one of the two years.

BRENNAN CJ:   Do you remember the name of the matter?

MR LINDON:   Yes.  Lindon.

BRENNAN CJ:   Lindon and who?

MR LINDON:   I think it is Little, sir.  That was the defendant.  It was the matter that arose - there was a case reported in the ALRs of Limbo v Little, which was the report of the Full Court of the Northern Territory that I sought to appeal to this Court, and your Honour refused to extend time for the purpose of that.

BRENNAN CJ:   Limbo v Little, is that right?

MR LINDON:   Yes, that is right, Limbo v Little, yes. 

BRENNAN CJ:   And it was a decision of mine and you then applied to Justice Dawson for leave to appeal.

MR LINDON:   For leave to appeal against your decision refusing me time.

BRENNAN CJ:   We will see if we can find that.  We will stand the matter down so that you can get whatever material you wish to get, Mr Lindon.  Perhaps if we say we will not take this matter again before 10.15.

MR LINDON:   Thank you, sir.

BRENNAN CJ:   We will endeavour to proceed with the rest of our list in the meantime.  You may have to wait to the end of any other applications that may be pending at the time that you return.

MR LINDON:   Thank you, sir.

BRENNAN CJ:   The Court will adjourn to reconstitute.

AT 9.47 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.57 AM:

MR LINDON:   Thank you for the time, sir.  In November 1995 I attempted to issue an application for a writ of certiorari against Justice Gaudron and Deputy Registrar Musolino and at page 14 of that book occurred a thing called a note on a composition of the court concerning this application.  Pages 14 and 15 I will pass up of this book make - I have shown this to my friends - clear my objections and the Registry in Melbourne has had several copies of that note, pages 14 and 15 of that, on several occasions in relation to this matter.

BRENNAN CJ:   Now, is there any material that you can show us to support these things?

MR LINDON:   Yes, at 10.15 I spoke to the Deputy Registrar and she had just received a fax down from Canberra of the transcript before you on Wednesday, 4 April 1990.  That is the occasion on which you said there was a farrago of irrelevant material and no scintilla of legal ‑ ‑ ‑

BRENNAN CJ:   Have you got that there?

MR LINDON:   I do not, because I understood that the Registrar was bringing it over then.  I do have a copy of the summons and the first page of the transcript.

BRENNAN CJ:   I thought you had material in your chambers.

MR LINDON:   I did, sir, and I attempted to locate that.  I came rushing back here at 10.15 with a copy of the summons and the front page and I spoke to the Deputy Registrar and she said she had just received it off the fax and my understanding was that she was bringing it over to the Court.

BRENNAN CJ:   What have you got at the moment?

MR LINDON:   I have got the summons in the matter that the time for lodging be extended and I have got the front page of the transcript and I understood a clean copy of the transcript was received by the Registry at 10.15.

BRENNAN CJ:   Is the burden of your complaints, so far as I am concerned, that I described your submissions as being a farrago of irrelevancies?

MR LINDON:   No, sir.  That is certainly part of it.

BRENNAN CJ:   What else?

MR LINDON:   In that matter I attempted to put to you the illegality of nuclear weapons and the transcript will show, sir, that you - in my view, you did not give that due judicial consideration.  It was almost not a matter that ought be considered seriously by the Court.  Those two remarks which I quoted are the high point of what you said, but to say that I was deluging the Court’s files with a farrago of irrelevant material and my submission is that the files will show it was not irrelevant material, nor were they deluged ‑ ‑ ‑

BRENNAN CJ:   What is the issue to which it was relevant?

MR LINDON:   I beg your pardon, sir?

BRENNAN CJ:   What was the issue pending in the Court to which it was relevant?

MR LINDON:   There is a case of Limbo v Little  reported in the ALRs.  I have given the citation.  That case concerned the prosecution for trespass at Pine Gap.  There was a mass protest at Pine Gap.  I took the point - I sought to call evidence on my defence to prove that in fact Pine Gap was a nuclear targeting base and was complicit in the use or threatened use of nuclear weapons which I maintain were illegal under both Australian and international law.

BRENNAN CJ:   Was that the issue to which the illegality of nuclear weapons was said to be relevant?

MR LINDON:   That is correct, sir, and it was discussed at length by the Full Court, as you recall.  Justice Martin gave the lead judgment.  My complaint about him was that he had actually been involved in setting up Pine Gap.

BRENNAN CJ:   You need not worry about Justice Martin.

MR LINDON:   It was only important because you did not perceive that as being a matter of bias at all.  I was arguing before you then that the fact that this Justice of the lead judgment of three judges and a Full Court had not disqualified himself, having made that disclosure. 

As far as Justice Dawson is concerned there was a tape recording made of that hearing.  It was a couple of months after April 1990.  When I spoke to the Deputy Registrar at 10.15 she informed me that there was no tape available but they only had the Court book in which the Registrar would have made notes. 

That is the beginning of my apprehension about your bias.

BRENNAN CJ:   Is there any other ground that you want to address?

MR LINDON:   In relation to yourself, sir, or Justice Dawson?

BRENNAN CJ:   Either.

MR LINDON:   Yes, there are.  Just in relation to Justice Dawson, when I appeared before him, having appeared before you in this matter, I gained the distinct impression, because of the speed with which it was dealt with and the way in which it was dismissed, that he did not take seriously for a moment the suggestion that nuclear weapons could be illegal, a point that - I do not have to draw your attention to the World Court’s decision and what has happened since then.  I think there is a clear ‑ ‑ ‑

DAWSON J:   What were you seeking to do in this proceeding?  You were seeking to appeal from ‑ ‑ ‑

MR LINDON:   Yes, sir, I will pass up the summons in relation to Justice Brennan and the first page of the transcript, so we have that before us, if I may.

DAWSON J:   You were seeking to appeal against the refusal by Justice Brennan to extend time and you were seeking to appeal to another single Judge.

MR LINDON:   That was what I was advised to do by the Registrar at the time because - as I say, rightly or wrongly, I thought that the matter had not been dealt with fairly before Justice Brennan and sought to appeal that.  I was told by Frank Jones, now the magistrate in Melbourne, then the Registrar, that the way to do it would be to seek an application for leave to appeal from you.  Mr Jones was very resistant to even listing the matter, and finally it was brought on, after repeated requests from me as to what had happened to it, before you at short notice in Melbourne.  The proceedings lasted, I think, about 5 minutes and I gained the distinct impression that because Justice Brennan had dismissed the matter in the way that he had, that you - anyhow, it was not dealt with in any way, in my submission, that would have been, had I been appearing as a barrister ‑ ‑ ‑

DAWSON J:   I do not have any recollection but it may well have been that the procedure which was adopted made the application so obviously one that would not succeed, that the matters in Pine Gap and so on would have no - I mean I know you would have said that they were relevant, but they may have had no relevance at all to the actual ‑ ‑ ‑

MR LINDON:   It may be that the things that fell from you at the time and the tone left me in no doubt that the question of nuclear weapons and the illegality, the question of Pine Gap and the question of military intelligence and the links between people in powerful positions in Australia and military intelligence was not something that the Court, and particularly you, would go into.

DAWSON J:   Yes, because they were not relevant to deciding the application that was before me.

MR LINDON:   That is clearly what you would have said, in one sense, although I believe it went further than that and I gained an apprehension at that time.  The reason it is so significant to me, your Honours, is this, that in my submission, had I in fact got leave to appeal or had my application for leave to appeal been dealt with in the normal way and the matters had actually been raised then, I would have been spared the complete waste of my life and professional time that has gone on for the past 10 years - clearly the past 7 years.  So that it is not just an idle suggestion that the bias is in some way - something I did not like, it has gone much beyond that because I feel that there was an actual injustice that occurred there and it resulted ‑ ‑ ‑

BRENNAN CJ:   Mr Lindon, until we have some material before us, which I understand the Registrar is bringing over whatever she has, until we have got some material before us there is really not much purpose in making speeches about how you felt about things.  If, in fact, you have been making submissions that are irrelevant to any issue before the Court ‑ ‑ ‑

MR LINDON:   Yes, if in fact I have, sir, that is right.

BRENNAN CJ:    ‑ ‑ ‑if you have and if Justice Dawson or if I have said so, that does not possibly provide any ground for an apprehension of bias.

MR LINDON:   That is right, unless - and I do not know if your Honours are familiar with the arguments I have been making about point of view and ‑ ‑ ‑

BRENNAN CJ:   If it is a question of relevance of the international legality of nuclear weapons to issues that are the subject of domestic litigation, then it may be that the views that have been expressed are not only those which are held, but those which are legally correct.

Now, the Registrar seems to have arrived with some papers.  Perhaps you could take them to Mr Lindon and see which of those he wishes to draw upon in order to make good his submission.

MR LINDON:   You asked me if there were any further submissions I wished to make ‑ ‑ ‑

BRENNAN CJ:   First of all, see what you have got there and see if there is anything that can be of assistance to you.

MR LINDON:   If I can take you to the one of 4 April. 

BRENNAN CJ:   4 April, yes.  This is an application for waiver of fees, is that right?

MR LINDON:   Yes.

BRENNAN CJ:   This is the one that I said I remembered, is that correct?

MR LINDON:   No, sir, you are looking at the first of the three bundles, between Jeane Bickett, Jacob Grech & Ors v Kim Beazley, Gareth Evans & Ors.  That is the one you remember.  That was the one that was reported as Ray Limbo. 

BRENNAN CJ:   I see.

MR LINDON:   There are two others.  There is one of 4 April and one of 30 May.

BRENNAN CJ:   4 April.

MR LINDON:   Turning to 4 April, which was the front sheet I handed up to you.  See at page 6 of that document, halfway down, the bottom paragraph, it says:

I attempted to lodge these documents by post because I claimed bias, both judicial and within the system of court officers in Darwin. 

I explain the situation there.  At page 8 I mention the kinds of cases that are coming to the Court and the question I say it raises is whose ‑ ‑ ‑

BRENNAN CJ:   It is not a matter of what you said; it is a question of whether there is anything in here which justifies your submission that I ought to disqualify myself on the ground of apprehended bias.

MR LINDON:   Yes, I understand that, sir, and that is why I am saying what I said to you on that occasion at page 8 is the question was:

“Whose responsibility is it to in fact investigate and prosecute serious breaches of the law, eg, attempted murder, terrorism, poisoning of the environment?”

which are effect the nuclear weapons.  This is the matter that I was laying out to you in that application.  Page 9 I draw your attention to the inequality of resources and the fact that I had been working on it for a while.  Pages 11 and 12 I take you through the appeal before Justice Kearney.  Then the matter continued on 30 May in which Mr Trevor Riley, QC appeared with Mr Clift junioring him.  These points were made again, sir.

Now, your Honour’s ruling, if it may be called that, occurs at page 15.  Your Honour has made the point to me that it may well be that it was just a matter of irrelevance and that was a legal question but what I am putting to you, and what I put to you on that occasion is that this Court and some of its Justices do not consider that matters of security, intelligence, Pine Gap and nuclear weapons are relevant to anything that could come before this Court.

BRENNAN CJ:   Now, is that all the material you have got to support your application that I should disqualify myself?

MR LINDON:   No, sir, I am just trying to find the “no scintilla of legal merit” quote where ‑ ‑ ‑

DAWSON J:   You will find that on pages 15 and 16 of 30 May.

MR LINDON:   Thank you.  As I say, that then went before Justice Dawson some months later.

BRENNAN CJ:   Is there anything in 15 and 16 that you want to draw attention to?

MR LINDON:   I have just been informed by Justice Dawson that that is where the “scintilla of legal merit” quote occurs.

BRENNAN CJ:   You will see the “farrago of irrelevant material” on page 15 about three-quarters of the way down.

MR LINDON:   Yes, that is right.  And the “scintilla” comment occurs on the next page.  Right.  Now, you say that:

It may be that his understanding of the legal process is quite different from mine but, however that might be, I am unable to determine that there is any scintilla of legal merit in the application which he seeks to make.

Now, I would assume, your Honour, that possibly you still hold the same view.  I do not know.

BRENNAN CJ:   It may well be.

MR LINDON:   It may well be, but my submission is that the material on the Court file is not irrelevant.  It was all strictly relevant to the application and to the issues and, furthermore, that there was more than a scintilla of legal merit.  That has been demonstrated by the World Court itself ‑ ‑ ‑

DAWSON J:   But you see, Mr Lindon, bias is not demonstrated by a failure of a judge to accept your submissions.

MR LINDON:   I understand that.  I understand that is a problem I have to face, and his Honour has accused me of making speeches from the Bar table, but I think because I am here appearing in person, it is very much my apprehension as much as the reasonable man’s apprehension that is at stake.  I say that this bias is compounded - this goes back a long way.  I remember these events very vividly because I found it quite professionally unhelpful to have this kind of comment made by a senior Judge of the Court to me.  But be that as it may, I remember them distinctly, sir, and as you will know, certain matters came before this Court last year and the year before in relation to nuclear weapons ‑ ‑ ‑

BRENNAN CJ:   You are limited to five more minutes on this aspect of the matter, Mr Lindon.

MR LINDON:   Thank you, sir.  You will recall that matters No M43 and M44, I believe, came before this Court seeking applications for special leave to appeal in relation to an injunction I had taken out against the Commonwealth to stop them bankrupting me for court costs in relations to these nuclear weapons cases.  Now, in those submissions, I made the point - I especially made the point in relation to the notice that the Bench has seen about yourself, sir, and Justice Dawson deciding those matters.  I also made the point that litigants in person not being entitled to an oral hearing on such an application.  The Court ruled that the Full Federal Court’s decision on gender bias was undoubtedly correct and my concern ‑ and I have raised it in this document itself ‑ is that there are three interconnected matters:  there is the fact of being a litigant in person; there is the fact of the absence of any women, apart from one, on the highest Bench in the land; and there is the fact of the illegality of nuclear weapons.  I say those three things are all connected.

However, the Court did not see any connection between my argument about gender bias and the relevance of nuclear weapons, but it is simply this, sir, that history teaches us that most of the human rights abuses concerning nuclear weapons and the potential genocide that they bring have been committed by males.  There is clearly a connection there.  There have been no, as far as I am concerned, women involved in the case, and therefore it was important to have a non-male Bench deciding it.  The fact that, in 1990, I had formed this apprehension about whether an unbiased judicial mind could be brought to bear on this topic by yourself, sir, and Justice Dawson, and I believe that the way in which those cases were dealt with last year confirms my apprehensions in this matter.  Thank you.

BRENNAN CJ:   I have heard what Mr Lindon has to say about whether I should disqualify myself from further participation in this application or on this appeal as the case may be.  The material which he has been able to point to has, in my view, fallen far short of what is necessary to justify a Judge in refusing himself or herself from the hearing of matters which are within his or her jurisdiction.  I therefore regard it as my duty to continue to sit in this matter and I reject his application.

DAWSON J:   For my part, nothing has been placed before the Court which would, in my view, form a basis for any reasonable apprehension of bias upon my part in the hearing of this matter and I therefore refuse the application that I disqualify myself.

BRENNAN CJ:   Mr Lindon.

MR LINDON:   Thank you, sir.  If I could take you first to page 304 of the application book.  You see that what I am seeking in this appeal is basically that due process be allowed to take its course, namely that under order 3 sought:

The matter be adjourned to a hearing on the merits of the plaintiff’s substantive claim according to the following timeline:

(a)  Defendant to file defence.....

and notices to admit and notices to produce, which I intended as a plaintiff to serve on the defendant.  And then proceed to a directions hearing and, hopefully, a hearing date to be arranged.  That is what I am seeking in this appeal, your Honour.

If I can just take you through the grounds of the appeal which occur a few pages earlier at page 299.  The principal grounds of attack are that there was a reasonable cause of action, and I particularise in points (a), (b), (c) and (d) why there was a cause of action.  I put particular stress on the fact that it was not too hypothetical or too high a level of abstraction.  Now, if I can take you to my second ground of appeal, which is on page 300, I say that:

His Honour failed to take into account relevant considerations in determining whether the issue was real or hypothetical -

if I could just take you briefly through these points.  The most important one occurs at paragraph 2(a) on page 300, and that is:

The fact that the defendant still participates in the nuclear targeting of civilian populations both within Australia and elsewhere by allowing and assisting the US Defense Department.....with surveillance and communication satellite groundstations at Pine Gap ‑

Could I pause there just to captivate the judicial mind with an essential point in this case which is this:  do your Honours understand what Pine Gap is?  May I just briefly for two minutes background it so that you understand why I say it is not too hypothetical.  Here is America, here is Australia.  America has got nuclear weapons, Australia has no nuclear weapons.  That is quite clear.  It is prohibited by the South Pacific Nuclear Free Zone Act.  However, in Australia there are several US bases.  One of them is Pine Gap.  There are satellites in the sky.  Pine Gap is a receiving and sending station for satellites.  The satellite up there bounces a signal back to America or it picks up surveillance from Indonesia or from the Middle East or wherever things are happening and bounces it back to America.  At the same time, in American, at the Pentagon, they have a nuclear war fighting command centre and from that command centre in the US - this is quite an important point, your Honour ‑ it is most important to me that the Bench understands what Pine Gap does.  In the US at the command centre they can command nuclear weapons to be fired and to be targeted by bouncing signals down to Pine Gap.  Right?  It is most important that you understand that the US has a nuclear war fighting strategy and uses Pine Gap - right - both as surveillance, as a command station, so in fact Pine Gap near Alice Springs is a nuclear targeting base.  It is involved - it is an essential part of the nuclear war fighting strategy of the US. 

Now, that is not a theoretical or hypothetical fact, your Honours.  In the additional material booklet which I lodged yesterday you will see, at page 6 that the defendant’s Minister for Defence, Ian McLachlan, in February made a press release in relation to the communique which I refer to in my summary of argument, your Honours, namely a further 10 year lease for Pine Gap and there are press releases referred to about that.  Now, that is not a hypothetical or theoretical situation.  It is occurring now and the Pine Gap Agreement will show that Australia has committed itself to assist the US with its operations at Pine Gap.

Now, if Pine Gap was just used for ensuring other countries complied with restraints on biological weapons and chemical weapons and nuclear weapons, that would be great.  Unfortunately, it is tied into the US’s nuclear war fighting strategy. 

Now, the other considerations that I say his Honour has failed to take into are (b);

The fact the US nuclear-armed submarines and ships still make regular visits to and through Australian waters;

You will see, your Honours, in the application book, that I have included some process that was taken out - this is at page 237 of the application book ‑ some process that was taken out to attempt to stop nuclear ships coming to Australia.  You will also see, while we are pausing there, that at page 194 of the application book I have set out a detailed writ and statement of claim in relation to the operations at Pine Gap and you will see what might be of particular interest to Court is at page 201, a summary of the statement of claim, by which I plead The Security Treaty Act 1952, The Pine Gap Agreements, which are treaties made under that statute, purportedly, the South Pacific Nuclear Free Zone Act, common knowledge about the Pine Gap facility and I have just taken your Honours through some of that common knowledge.  And I take your Honours in this statement of claim to the Weapons of Mass Destruction Act and customary international law.

So these matters are not hypothetical and theoretical; they are matters of practical significance and, in fact, when Mr Clinton was here some months ago, there was discussion about whether it was appropriate to initiate process against him in terms of the draft writ and statement of claim beginning at page 194.  It was thought inappropriate to proceed in any way until this Court had ruled on this matter.

BRENNAN CJ:   Mr Lindon, I take it that at the moment you are addressing us as on the appeal, is that correct?

MR LINDON:   Yes, sir.

BRENNAN CJ:   So we do not need to decide the question of whether or not leave to appeal is required.

MR LINDON:   No, sir, I had assumed that your comments earlier ‑ I have taken you straight to the ‑ ‑ ‑

BRENNAN CJ:   Yes, that is right; quite so.  Your time will run from when we started on this aspect of the matter, not from when the ruling was given.

MR LINDON:   Yes, sir, I think I have been going about 10 minutes, is that right?

BRENNAN CJ:   Yes, that is right.

TOOHEY J:   Mr Lindon, could I just take you to page 260 of the application book in which Justice Kirby, from whom the appeal is brought, identifies the declarations that you are seeking in the statement of claim.  It is on that footing, as I read his Honour’s judgment, that he decided that the action lacked any sort of specificity and to used, I think, the language which Justice Kirby uses at page 273, on the second half of that page, he says of those declarations:

They identify no precise legislative or executive action which is attacked.  They identify no individual, corporation or government which is alleged to be in present breach of the law of Australia.

Then he speaks of hypothesis upon hypothesis.  Really that, when you couple that with what he says on page 275, about halfway down, when he speaks of your concerns as being expressed -

in completely general terms and at a level of abstraction which is insusceptible to legal resolution by the provision of a declaratory judgment.

That is really the footing upon which his Honour dismissed the application, is it not?

MR LINDON:   Yes.

TOOHEY J:   And that is really what you have to come to grips with.

MR LINDON:   That is right, and that is why I was at pains to point out that this - to make sure that the Bench understood what exactly Pine Gap is and does and why I therefore say it is not hypothetical.

TOOHEY J:   Yes.  But his Honour was not conducting a trial; he was dealing with an application to strike out your statement of claim.

MR LINDON:   That is right.

BRENNAN CJ:   Perhaps the problem lies, Mr Lindon, in understanding the necessity for a relationship between what you assert to be the facts in relation to Pine Gap to some justiciable issue, that is some issue which is capable of determination by this Court, as distinct, for example, an issue that may be before the International Court or before the Parliament or some legislative or executive body.

MR LINDON:   It cannot be right that nuclear weapons per se are not justiciable.  That cannot be right.

BRENNAN CJ:   Why not?

MR LINDON:   That nuclear weapons per se are not justiciable?

BRENNAN CJ:   Yes.  If I might say so with respect, it does not make sense to say that nuclear weapons are justiciable.  Justiciability relates to an issue, not to a thing.

MR LINDON:   I agree, yes, that is right.

BRENNAN CJ:   What is the issue?

MR LINDON:   The issue is whether Australia’s complicity in the operations of Pine Gap is a crime under both Australian law and international law and whether it is a breach of civil law as well.  That is the issue.

BRENNAN CJ:   What is the breach of civil law or criminal law that is alleged?

MR LINDON:   There are several breaches and I have particularised those.  There are the Weapons of Mass Destruction Act 1995, there is the South Pacific Nuclear Free Zone Treat in 1986 and there is the Nuclear Non-Proliferation Act 1995.

BRENNAN CJ:   And what is the remedy sought?

MR LINDON:   I merely seek, sir, a declaration that those three Acts ‑ and there seem to be no others in relation to nuclear weapons ‑ those three Acts make clear that the use or threatened use of nuclear weapons is against the law of Australia, not just case law, the statutes, right.  Justice Toohey’s concern was to highlight Justice Kirby’s concern that the declarations were sought in purely general terms.  Now, I say to that - my answer to that is two things:  first of all, plain language drafting is not a bad idea, particularly when I am talking about an issue that ordinary people want to understand.  Rather than taking an action saying that the provisions of those three Acts that I have mentioned, when read together with customary international law as set by the World Court, are to fill any lacunae or ambiguities, make clear that the use or threat of nuclear weapons is not permitted in Australia.  That would be one way of drafting it. 

But because the World Court questions had been drafted in a way that was susceptible to the easy understanding of the person in the street, I adopted the same plain language drafting.  It does not mean that the questions are general, because I am seeking in my declarations as to both municipal law, Australian law, and also international law as incorporated in Australian municipal law.  And I say, under this legislation which was put before Justice Kirby in some detail and which, as I say, is particularised in great detail in my draft statement of claim beginning at page 194, I say that that makes quite clear that the use or threatened use of nuclear weapons is illegal in Australia.  I mean it may appear to be a large question because we are talking about nuclear weapons as opposed to machine guns or biological weapons or chemical weapons, and because I have not expressed it in the - what I might say a traditional legalistic manner.  But the result intended is the same.  Whether I plead that nuclear weapons, the use or threat of them, and particularly the operations of Pine Gap, contravene the provisions of the Acts I have mentioned, or whether I plead that nuclear weapons are illegal, in my submission, should not be a relevant consideration because it is a matter of plain language drafting.  The critical question is are these weapons against the law.  Here, sir, the only interesting question I can really toss up to you on this matter is this, and I refer to this both before Justice Kirby and in the application book, namely that there is one provision in the South Pacific Nuclear Free Zone Treaty Act, section 15(3), which says that section 10, which is the general prohibition on stationing a nuclear explosive device in Australia:

Section 10 does not apply to or in relation to.....a nuclear explosive device that is outside Australia.

That is why I was at pains to wave my arms around and show you how Pine Gap worked because, at the moment, there seems to be an exception made statutorily to Pine Gap, depending on how the court interpreted that provision.  I say, in relation to that, that that provision falls because it is outside the defence power.  Because now that the World Court and Australia itself has said that self defence does not justify the use of nuclear weapons, then I say there is no placita under which this exception could be made.

BRENNAN CJ:   Are you waiting for something, Mr Lindon?

MR LINDON:   Well, sir, I was not sure if you wanted me to continue or to pause while you were reading what you were reading, sir, in case I was ‑ ‑ ‑

BRENNAN CJ:   I am taking some notes, Mr Lindon.

MR LINDON:   Sorry, sir.  So that is my point, that the legislation, not the ‑ and I should point out that the Pine Gap agreements that I am talking about are merely treaties.  They are not statutes, right?  Therefore, a statute must override a treaty.  That is clear municipal law.  Unless those treaties are incorporated into municipal law by statute, then the legislation prevails.  I say that there is legislation now on the statute books, as recently as 1995, The Weapons of Mass Destruction Act, which makes clear that nuclear weapons, their threat or use, is against the law of Australia. 

Now, if the fault I have made, Justice Toohey, is in pleading it in plain English rather than in a legalistic mode of, as I have said, specifying that certain actions are contravening the provisions of the Act, well so be it.  I accept that criticism.  But I say that is not fatal.

TOOHEY J:   That is not the criticism.  That is to misunderstand what Justice Kirby said.  What Justice Kirby is saying, in effect, was that you were seeking declarations of such generality that they could not be attached to any particular person, body, legislative act, executive act, which would ordinarily bear the basis of a challenge to legislation in this Court.

MR LINDON:   That is true, but that flies in the face of the statement of claim which particularises these things I am talking about and which was served - which was incorporated into the writ, so that the declarations cannot be read, in my view, independently of the statement of claim.

Secondly, it flies in the face of a history of litigation which must be well known to this Court, going back, as we said before the break, to Limbo v Little, and that this question of my agitation of the legality or illegality of nuclear weapons was recently before the Court last year.  So that it is disingenuous, in my submission, for the Court to say, well, these are at such level of generality they are not attacking any executive act, when clearly the executive act I am attacking is made clear in my statement of claim and I have made it clear in previous litigation that I am attacking the operations of Pine Gap and their complicity in breaches of very very serious fundamental laws.

BRENNAN CJ:   Mr Lindon, it is not a question of what the Court understands you might be wanting to do.  It is a question of whether, in litigation between yourself and the Commonwealth, the pleading which you have produced is one which ought to be allowed to stand on the Court file as a pleading founding an action.

MR LINDON:   And is it not odd, sir, that coincidentally it just deals with Pine Gap and nuclear weapons and matters of very serious issues which, despite my attempts to raise it in criminal proceedings, quasi-administrative proceedings, civil proceedings and now in a declaration, over the years not once has there been a scintilla of evidence called in relation to this matter.  My understanding of the purpose of courts is that you can present evidence in the court and I have been prevented, for one reason or another to do with a continual series of my shortcomings as a lawyer and my legal drafting techniques, to actually present in this Court, which is a court of a member State of the United Nations, any evidence as to the complicity in - acts of genocide, which is what mass murder is through nuclear weapons, and I refer to various judgments of the World Court decision that make that, particularly the excellent dissenting judgment of Justice Weeramantry which I hope the Court has time to peruse at some stage.  Those are very fundamental and very serious questions and this Court has ducked them.  If they are to be ducked on the basis that it is not susceptible to - that the pleading is not susceptible to the attention of the courts that I am in ‑ ‑ ‑

BRENNAN CJ:   It is not a question of the susceptible attention to the court, it is a question of whether  it conforms to the rules of pleading which are essential to the conduct of litigation of issues which are justiciable.

MR LINDON:   Sir, I say my pleadings are not incomprehensible, they are not incoherent, they are simply ‑ ‑ ‑

DAWSON J:   No, no, that is not the point.  They do not disclose a cause of action.  That is all.

MR LINDON:   Ahh, right.  So that even though one presents to the highest Court in the land a variety of evidential sources which show that Pine Gap is used in the nuclear targeting of civilian populations and puts Australian civilian populations at risk, this Court is prevented from examining that question, the potential genocide of citizens of Australia and overseas, by a pleading technicality.

DAWSON J:   It is not a technicality.

MR LINDON:   Oh, I see.  Well, perhaps your Honour could explain to me how ‑ ‑ ‑

BRENNAN CJ:   It is not his Honour’s function to explain to you, Mr Lindon.

MR LINDON:   Of course not, no, sir, that is right.  So essentially we are playing this very amusing chess game of trying to figure out how exactly it is that we can bring the question of the illegality of nuclear weapons and Australia’s participation in that to the attention of the Court to prevent the defendant from doing that. 

Now, what I have been told by yourself, for example, sir, is that now I am at the Bar I should seek the help of experienced barristers who will tell me how to frame these things so that they can actually come properly to the attention of the Court.  Now, I have sought the help of the Victorian Bar in this matter in the Human Rights Committee, sir, and I am afraid that your anticipation that they would assist me in this matter is not correct.  I think that a lot of the profession are looking for guidance from this Court.  At the moment, well the lonely room of the conscience, sir, is what I have read you ultimately referring to as the burden of a Justice of this Court, and it seems to me, sir, that - assuming I am not an idiot and that I am sort of vaguely au fait with the working of the law ‑ not to your level and not to my friend’s level ‑ but sufficient to understand a judgment of the World Court that says that nuclear weapons are illegal, and sufficient to gather all the evidence that I say proves Australia’s participation in that, sir, how exactly is it that I can bring this question to the Court to prevent the defendant from involving itself in nuclear targeting. 

Now, I have tried being arrested at Pine Gap and trying a criminal prosecution and calling evidence. I have tried taking out a civil application in the Federal Court to prevent protesters being arrested at Noarlunga in relation to it. I have tried taking out injunctions to stop myself being bankrupted over this question and, finally, when Australia went to the World Court in October 1995 ‑ and Dr Griffith himself stood up before the World Court, 15 judges, and told them that nuclear weapons were per se illegal. Of themselves they were illegal. The customary international law had now reached a point where nuclear weapons were illegal. On the same day that he was telling the World Court that, I took out this writ in Australia. It was finally issued with the leave of Justice Gummow and that writ was identical to the World Court questions. My argument is that nuclear weapons already are illegal in Australia, apart from the one provision I have mentioned, section 15(3) of the South Pacific Nuclear Free Zone Act.  I say the defence power no longer allows that provision to stand, given what has happened to the customary international law of nuclear weapons. 

Now, Dr Griffith then stood up before this Court and he did not say anything about nuclear weapons are illegal per se, all he said was this Court is jurisdictionally incompetent, no cause of action, all the gate-keeping methods that he used to keep this question out of the Court have been used again by the defendant.  Now, I am at a loss to understand how, it is a bit Alice in Wonderland, how the country’s senior lawyer, next to the Attorney-General, can go to an international forum and tell that international forum in a detailed 50-page submission that nuclear weapons are per se illegal, the very thing I have been wasting my time and life on for the past 10 years, sir, can do that and come back to Australia and appear in the same matter and seek to have it struck out on a question of pleading.  Now, that is a hypocrisy, a moral and legal hypocrisy at a level which I find breathtaking.

BRENNAN CJ:   I do not think it is any function of yours to make criticism of your opponent as to the performance of his official duties.  Your function is to make submissions as to the issues that are before this Court at this time.  If you find that distressful or distasteful, that is a matter for you.  But this Court’s function is clearly defined and it is to determine this application according to law.  So please confine yourself to the legal issues.

MR LINDON:   I think I have run out of time.

BRENNAN CJ:   No, you have not run out of time.

MR LINDON:   It is a pretty clear indication from the Bench, in my submission, that there is a view, in which we disagree, as to exactly when matters are so general and so - that is why I sought to disqualify both yourself and Justice Dawson, because it is quite clear to me, your Honour, that it may be - in my submission, it is partly to do with generational, it is partly to do with a male thing and it is partly to do with the fact that the Bench basically has been appointed from people who have worked in government positions or on the side of government in some way, and that there is no experience in this Court of the difficulties and the processes involved in attempting to change the law, as it were, acting against the government and seeking to have the government comply with its own laws.  There is no experience, as I can see it, on this Bench of that kind of activity.  Therefore, it is not - there is a natural inbuilt bias, it seems to me, towards the Commonwealth of Australia and towards the defendant’s activities that this Court, it seems to me, would rather take the view that to seek to have declarations made in these terms about nuclear weapons is something that is not properly pleaded and therefore cannot be dealt with by the Court.  That is very convenient for the defendant and it is very convenient for the Court.

BRENNAN CJ:   It is not a question of convenience for the Court and I do not know that it assists either the Court or your submissions to have the benefit of your view as to the way in which you think the Court may be constituted or the fashion of its thinking.  If you do not wish to address the issues which are the legally defined issues for determination by this Court, that is a matter entirely for you.  The Court is not obliged to listen to submissions which are irrelevant to that issue.

MR LINDON:   If I may say, first of all, when I began by speaking to my appeal grounds, on the several occasions when I looked up there seemed to be ‑ and once again it could be my perceptions are at fault ‑ but it seemed to me that the Court was not listening to what I was saying, nor was it following the presentation of my argument.  Now that could be that I do not understand how people can do several things at once and all the rest of it, sir, and if that is an inappropriate comment, sir, then I withdraw it.  Thank you.

Now, if I can run through the rest of my grounds of appeal, and I see the light is on.  We looked at grounds 1 and 2 and I had taken you through some of the facts that I said the Justice at first instance failed to take into account.  I had taken you through ground 2(a).  Grounds (b), (c), (d) and (e) are set out in the book and concern the visits of nuclear armed ships and submarines and uranium mining.  The defendants strong stand against nuclear weapons and its Canberra Commission report.  Then in 3, which may well be what your Honour Justice Toohey was referring to, at page 301, ground 3, I say that:

His Honour erred in holding that the declarations were in “completely general terms and at a level of abstraction which is insusceptible to legal resolution by the provision of a declaratory judgment”.

And I point out there, and I name them, the actual Acts -

which make absolutely clear that the use or threat of use of nuclear weapons is not permitted in any circumstances.

In ground 3(b) I say:

Further, Australian customary international law that nuclear weapons can not be justified by self-defence affects and limits the purposive reading of the defendant’s defence power such that it is beyond the constitutional power of the defendant to use or threaten to use.....nuclear weapons in any circumstances.

Finally, paragraph 3(d) I say that:

Australian customary international law that nuclear weapons are per se contrary to international law.....affects and limits the defendant’s foreign affairs power such that it is beyond the constitutional power of the defendant to use or threaten to use (or to participate in the use or threat of use of) nuclear weapons in any circumstances.

Those are the three principal grounds on which I attack this judgment, your Honours, and I do list other grounds and I think that the one that I would particularly draw your Honours’ attention to is ground 7, which is on page 302 at the bottom:

His Honour erred in rejecting the plaintiff’s argument that the defendant was estopped from instructing, or could not have validly instructed the Solicitor-General and the Attorney-General’s Department to apply to set aside the writ and statement of claim:

Firstly, I say that:

(a)  His Honour misrepresented the argument in his Judgement -

and you can read on from there as to what I say, sir, that it was not just a question of a change of government, it was a show-cause situation because ‑ ‑ ‑

BRENNAN CJ:   I think your time has now expired, Mr Lindon.

MR LINDON:   It has.  Thank you for your time.

BRENNAN CJ:   The Court will adjourn briefly in order to consider what decision it will come to in relation to the remainder of this application.

AT 11.49 AM SHORT ADJOURNMENT

UPON RESUMING  AT 11.52 AM:

BRENNAN CJ:   Mr Solicitor, we think that there would be no occasion necessarily to call upon you in this case as the Court has formed its conclusion as the result of having heard the submissions of Mr Lindon.

MR GRIFFITH:   If the Court pleases.

BRENNAN CJ:   The applicant seeks leave to appeal from an order of Justice Kirby striking out his statement of claim and dismissing his action against the Commonwealth.  The respondent submits that the applicant has a right of appeal.  The applicant does not resist this view, saying that the application for leave was filed ex abundanti cautela.  So we shall assume, without deciding, that no leave is required.

The declarations sought by the plaintiff in the statement of claim are as follows: 

“1.  The threat or use of nuclear weapons in any circumstances is not permitted under municipal law.

2.  The threat or use of nuclear weapons in any circumstances is not permitted under international law or transnational law.

3. The use of nuclear weapons by Australia in war or other armed conflict would be breach of its obligations under municipal law including the Constitution.

4.  The use of nuclear weapons by Australia in war or other armed conflict would be a breach of its obligations under international law and transnational law.”

These declarations were described by Justice Kirby in these terms: 

“They identify no precise legislative or executive action which is attacked. They identify no individual, corporation or government which is alleged to be in present breach of the law of Australia. True, they refer to what would be the case if Australia, in war or in other armed conflict, were to use nuclear weapons. But this involves hypothesis piled on hypothesis. That Australia would be involved in a war. That it would be involved in actual armed conflict. That it would have, or have access to, nuclear weapons. That it would use such weapons. That such use would breach the Constitution, international law or “transnational” law. That Australia would threaten to use nuclear weapons. That such threat would breach Australian, international or “transnational” law. That the jurisdiction of this Court might be invoked to declare the requirements of international law, apart from the extent to which such law was incorporated in Australian law, by a lawmaker with relevant authority to do so.”

Later in his Honour’s reasons, he said:

“Mr Lindon wishes to attack the use, or threatened use, of nuclear weapons as such. However, at the level of generality by which his pleading claims relief, it presents an assertion which, in my judgment, is bound to fail. No court of justice, least of all this Court which works within the confines of Chapter III of the Constitution and avoids the unnecessary invasion of the proper provinces of the other branches of government, would provide relief of the kind sought in the declarations pleaded.

On this footing, the statement of claims fails to disclose a reasonable cause of action.  In its present form, the Commonwealth is clearly entitled to relief.”

We agree.  The appeal must be dismissed.

MR GRIFFITH:   I ask for costs, your Honour.

BRENNAN CJ:   What do you have to say to that, Mr Lindon?

MR LINDON:   Well, sir, obviously I oppose the application for costs, but since I have already got 50 grands worth of costs anyway, it does not really matter because I think I am facing bankruptcy anyway, so it is really - it may be an otiose order because it may not be collectable.

I think all the reasons I would put to your Honours about - particularly in the light of the Law Reform Commission’s inquiry of recent years and the cost shifting question and so on, and whether there is a question of public importance and other criteria, but my reading of the cases, very seldom is such an order for costs not made.  The costs follow the event, seems to be the line of this Court, and if the Court cannot see that these are circumstances where costs ought not be awarded, then there is probably not much more I can say.  But I think, under the Court’s own rhetoric about when costs not be awarded, this is one of those situations.  However, it may be important to send out a message to people who would dare to challenge the government on nuclear weapons that they will be at risk of costs orders being made and that that will be a very good disincentive to prevent them cluttering up this Court with matters of fundamental human rights.

BRENNAN CJ:   The appeal is dismissed with costs.  The Court will adjourn in order to reconstitute.

AT 11.57 AM THE MATTER WAS CONCLUDED