Lindon v Cwealth of Australia

[1996] HCATrans 91

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M82 of 1995

B e t w e e n -

LEN LINDON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for referral to Full Court

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 25 MARCH 1996, AT 9.30 AM

(Continued from 11/3/96)

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Lindon, you are still appearing for yourself.

MR L. LINDON:   Yes, sir.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth.  I still appear with MS M.A. PERRY, although her appearance is notional today, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Thank you.  I think you want to read a further affidavit or further affidavits, is that correct?

MR LINDON:   Yes, sir.

HIS HONOUR:   Would you identify them for the record, please?

MR LINDON:   Yes, sir, a summons take out on 20 March and there is an affidavit LL 1, together with an exhibit LL 1, and there is an affidavit marked LL 2, together with a bulky exhibit also marked LL 2.

HIS HONOUR:   Yes.  Have you seen these affidavits, Solicitor?

MR GRIFFITH:   Yes, I have, your Honour.

HIS HONOUR:   Have you any objection to their being read subject to their being shown to be relevant?

MR GRIFFITH:   Your Honour, perhaps they can be read silently but we have got no objection.

HIS HONOUR:   Yes.  Now, Mr Lindon, in one of these affidavits you refer - I think it is LL 1 - to the fact that in February 1995 you wrote to me in my capacity as President of the Australian Section of the International Commission of Jurists and you also refer, I think, to an exchange that took place between us in correspondence, is that correct?

MR LINDON:   Yes, sir.

HIS HONOUR:   Where do I find that correspondence.

MR LINDON:   That is in exhibit LL 1, sir.

HIS HONOUR:   Where is the actual letter?

MR LINDON:   Yours or mine, sir?

HIS HONOUR:   Yes.  Why did you not raise this at the beginning of the proceedings in Canberra?

MR LINDON:   Firstly, I had only had a hazy recollection.  Although I had brought many documents with me I only hazy - - -

HIS HONOUR:   Your recollection was even more hazy than mine.

MR LINDON:   That is right.

HIS HONOUR:   My recollection was zero.

MR LINDON:   Yes.  I raised it - - -

HIS HONOUR:   If you had raised that at the beginning other procedures might have been followed.

MR LINDON:   Yes, sir.

HIS HONOUR:   I think that your raising them at this stage is such that, subject to any argument you want to put on the matter, I intend to deal with it on the basis that you have waived any objection that you wish to raise in respect of my sitting.  I must express a certain irritation at the way in which you proceeded in this matter.

MR LINDON:   Sir, I understand everything that you are saying and you will see in my summons I have put “may or may not” and I have put it ‑ ‑ ‑

HIS HONOUR:   It is not a matter of may or may not, I take the strictest view on matters of this kind.

MR LINDON:   Absolutely, sir.

HIS HONOUR:   But the Court has held that this is a matter which a person may waive and as far as I am concerned, subject to anything you wish to say on the matter, I am intending to deal with the matter, it being part-heard and some time of the Court having been spent on the matter, as having been waived by you.  Do you wish to be heard against that course?

MR LINDON:   I just say two things, sir.  I felt that, at whatever stage, it was proper for me to disclose that once having gone back and checked my documents, I thought I should put all the information before the Court so that my friends as well had a chance to see it so that I could not at some later stage, if it came up, be accused of not bringing it to the Court’s attention and, secondly, I did mention to the Deputy Registrar that came into Court in Canberra on the morning that I thought I probably should raise some question about disqualification because of the fact that I thought there was some correspondence but then - as the transcript shows, sir, I started out by seeking an adjournment on the basis I was not prepared and then we sort of batted on and I confess it was probably the least important thing on my mind once, as it were, we were engaged on the application. 

But I did raise with the Deputy Registrar and I did say, “Look, I think I might have to raise with the Judge some previous correspondence and that there may be a disqualification point” and that is where it was left, sir.  So, I did advert my mind to it which supports your argument about waiver but I thought that given that I was putting written submissions in, it was only proper to - I think I have headed my affidavit here, “Disclosure” and I have been quite careful, sir, in drafting my summons not to ask that you disqualify yourself but to put it at the bottom - in the last order - any other order the Court sees fit and I have said “perhaps” and I have said - that is as far as I have gone.

I just thought, sir, that because of the last sentence in the second paragraph and the last sentence of the last paragraph that it was probably important for it all to be on the Court record.  I also balance that, sir, by excerpting at length your statement which we discussed last time from your speech, which is not authority of the Court, but it is something I can put before the Court in affidavit material.  I leave it there, sir.  I understand completely your point about the fact that I may have waived my rights.  It is just that your Honour yourself may have a view above what the parties say and I merely put it there for that reason.  It is not - yes, that is all I say.  But I - - -

HIS HONOUR:   Just let me interrupt you for a moment.  Do you have anything to say on this matter, Mr Solicitor?

MR GRIFFITH:   Your Honour, we have prepared submissions saying this is a clear case of waiver.  I could hand them to your Honour.  We say it is a plain - - -

HIS HONOUR:   Yes, thank you very much, hand that up.

MR GRIFFITH:   I have not given them to my friend but I will pass one to him now.  Paragraph 7 is the particular submission with citations and our submission is it is the plainest case, your Honour.  We do go over and say it is also a plain case of no reasonable apprehension of bias as well.

MR LINDON:   You say it is a plain case of reasonable apprehension?

MR GRIFFITH:   Of absence of reasonable - - -

MR LINDON:   Right.

HIS HONOUR:   Yes, and I have read that.  Well, at least for the moment.  Do you wish to say anything in response to that?

MR LINDON:   Just briefly, sir, that I note in paragraph 7 the first sentence talks about “objection to the continuing participation of that Judge”.  I read the rest of what my friend says and I simply say that I was aware that your Honour, I think, was not sitting on the Aboriginal Children - the Genocide Act Removal of Children Case because, I think, of some previous involvement with the ICJ.  So, I just thought in all the circumstances it was proper of me as a practitioner as well to make sure that these matters were raised and I do not take the matter any further.  It is ultimately a matter for your Honour as to whether your Honour feels that despite the fact that it has been raised at this late stage and despite the fact that I may have been seen to have waived any application I could make, at least it is before the Court so that no criticism can be made, at the very least, of this Court or of yourself by anybody else.  Thank you, sir.

HIS HONOUR:   Yes, thank you.  I will continue to hear the matter and see it to determination.

MR LINDON:   Thank you, sir.

HIS HONOUR:   Now, you have now before us a summons which seeks the reference of the matter to the Full Court.  What is the basis of that belated application?

MR LINDON:   Sir, there is a two-fold basis.  It is not - - -

HIS HONOUR:   Why was it not made on the first occasion?

MR LINDON:   Well, sir, as I put to you there, I was seeking an adjournment for the purpose of thorough preparation and your Honour gave me leave to make written submissions and in the course of my - - -

HIS HONOUR:   You would have remedies, of course, in the event that the application here failed.

MR LINDON:   That is true, sir.

HIS HONOUR:   You can seek to appeal that to the Full Court.  What is the reason for not seeing my part in these proceedings to conclusion in the way in which they have begun?  That seems a more efficient use of the Court’s time.

MR LINDON:   There are three things to be said.  First of all, the Court recently - in fact, during the adjournment I have read a report in The Age - sir, it is not reported as far as I know - on 16 March that the case of Nick Toonen and Rodney Croome have been referred by the Chief Justice to the Full Bench because of the important constitutional issues which the case raised.  The report does not go into much detail, sir, but for what it is worth there is a very recent precedent of the Court.  The second thing, sir, is that ‑ ‑ ‑

HIS HONOUR:   I think that might have been an application made on the first return of the matter whereas yours is an application made when it stands for judgment subject to any further written submissions which you put in.

MR LINDON:   I understand that.  I am vulnerable to that criticism but I do not think it is fatal.  The second point, sir, is that - and this is probably a practical point - it is likely to, from my point of view, end up there in any event - in any event, your Honour will be aware that in matter No M80 of 1995, it is an application for leave to appeal the what I might call the “gender” ruling of Justice Gummow that was given in this Court last year.

HIS HONOUR:   Yes.  Why is that not the proper course?  I have not determined the matter yet.  If the matter is determined that you can proceed with your application, then it will proceed, and the Full Court is spared any consideration of the matter.

MR LINDON:   I understand that, sir.

HIS HONOUR:   If the matter is determined that in my view you cannot, you have your rights of relief in the Full Court and the Full Court has the benefit of my reasons.  Why is not that the suitable course?  That is the course that the rules normally envisage and it would mean as well, in the event that the ruling went against you, that you would have the benefit of whatever I have to say and you can criticise or submit that it is wrong in whatever way you think is appropriate.

MR LINDON:   Absolutely, sir.  It is just, as I say, the Chief Justice did do it in the Toonen Case.

HIS HONOUR:   That was an application made, as I understand it, at the very outset of the proceedings.  Yours is an application made when these proceedings were all but completed.

MR LINDON:   Quite, sir, but that does not still meet the point that you have made to me which is that in course - usually, the helpful judgment of the single Justice at first instance will assist the Full Court but the Chief Justice did decide in a very recent case that he would go the other way and obviously there are compelling reasons for it.  I do not think it all hinged on whether or not the application was made at the first return date, sir, with respect.

HIS HONOUR:   You said there was a third reason.

MR LINDON:   The third reason is this, sir:  the Solicitor-General has opted not to demur but to, as I understand it, raise a preliminary point.  Now, under the demurrer proceedings set out in the High Court Rules, the person demurred against has a virtual right to put the matter into the Full Court.  I think within seven days of the notice being filed the party receiving the demurrer or either party can ask for it to be set down before the Full Court and it can go straight to the Full Court.  Now, my point is that the Solicitor-General or the Commonwealth had opted not to go for that procedure but I take the Commonwealth - certainly the Solicitor‑General’s remarks at the hearing last time that they had virtually elected not to call evidence.  The Solicitor said that, in relation to the Horta’s Case for example, they first attacked the merits and then justiciability and then standing, I think.  Certainly merits were first.  He said there was nothing in this case.

Now, I take him either to be electing not to call evidence or to simply putting his defence,  His formal defence would be filed subsequently on the basis that either there is no cause of action or that the relief sought cannot be granted by this Court for one reason or another.  Those two, if you like, legal arguments and not to any - although he admitted the facts in the statement of claim for the purpose of the proceedings, I took him, perhaps incorrectly - we will find out in a minute - to go further and either indicate there was no further defence being considered by the Commonwealth or that they had elected not to call evidence.  I am sure I will be corrected on that.

Now, my reading of the law when I went back to the laws of Australia and back to various cases that I followed up after this hearing, because I had it in my mind that the submissions of the Commonwealth had not fully represented the law to this Court on the matter of both standing and, indeed, on vexatious, frivolous, no cause of action inherent jurisdiction of the Court to stop processes and abuse of the Court - my reading of both Mr Cairns’ section of Civil Procedure in the Laws of Australia and the section by Kenny and McLeish on government, and there is also a bit on administrative law as well that I looked at and a bit on equity is this, that if the plaintiff through his statement of claim has an arguable cause of action, that it is usually appropriate to let the matter run its course and I say that that is particularly appropriate in this case where the Commonwealth has virtually indicated that it does not have any other defence to the matter apart from the questions of relief and no cause of action.

The dicta from this Court are much more - are different - I should put it this way - to how they were put by the Commonwealth.  It is quite clear that it depends very much, as a matter of fact, in each particular case - I mean, this is quite clear from my reading of the law - Chief Justice Mason is a particular proponent of this line, the former Chief Justice - that it really is very much a question of facts and it cannot be solved simply by some general proposition and that the cases in which matters have been struck out tend to be one of two kinds; they tend to be virtually incoherent in lawyers’ terms:  statements of claim - Mr Staats is one, for example - but many of the reported decisions on matters being struck out are in one respect, on their face, just as a simple matter of legal writing, you know, incomprehensible.  Mr Staats, for example - your Honour is probably familiar with the case.

Now, clearly that is not this case.  This case is a matter where all the documents are in order.  There is no, in my submission, extraneous matters; there is no matter that is - for example, the telltale sign in many of those actions has been the use of legalese, completely inappropriate legal phrases, completely inappropriate to what has been stated and out of context.  There is none of that here, I hope.

If your Honour accepts that the matter is arguable, that is to say, if one looks at the material that I have exhibited to my affidavit of 18 March, affidavit LL 2 and exhibit LL 2, in my submission, there is enough in that material for my statement of claim to be arguable, to be not completely hopeless, to be not - I think, the former Chief Justice Barwick in one of the cases I looked at listed the various formulae that had been used.  In any event, if that be the test, sir, then it would appear that there is not too much more that needs to, perhaps, be done in this matter and that it can, as it were, conveniently go to the Full Court because it raises questions that, as your Honour indicated last time, would need to be settled by a Full Court and that your Honour’s hands may be tied, as a single Justice, by existing decisions of this Court. 

For example, when this matter came before the Court, your Honour indicated - and I say it is no more than just an indication for the purpose of argument, it does not indicate your concluded view - but you indicated that the declarations sought were very wide and vague or - I think that was the way in which you described it - of such generality.  But, in fact, if your Honour accepts that declarations 1 and 3 which relate purely to municipal law, if 1 and 3 can stand - and once again, my reading of the law of amendment and of the actual dismissing of actions rather than merely striking out part of the pleadings or, indeed, striking out the whole pleadings but allowing the party to come back with a fresh writ - if your Honour exercises that sort of power - and, once again, the cases I read say the Court should be at pains to allow the plaintiff to have a hearing, then 1 and 3 are clearly relating only to municipal law and, in fact, they also exactly parallel the matters that are being decided or being considered by the International Court of Justice which is a court, and as a foreign court it is certainly of some authority, if not as a precedent per se, then it shows a line of authority, I think is the formula that one can look at.

I make the point also from my reading of the cases that what is being sought here is a declaration that the Supreme Court Rules that delimit - Order 26 rule 19, that delimits the declarations raises a very interesting and, I would say, a point that has been coming to this Court for a long time that has finally been raised which is where do declaratory judgments which can look to future action and - where declaratory orders differ from advisory decisions of this Court. Now, that is, I think, maybe adverted to by the Commonwealth in arguing or raising the question of “a matter” within the Constitution. But the important point about declaratory orders is that they are an equitable remedy and that one is there very concerned about doing justice and about the particular circumstances of the parties. One can go behind, as it were, the common law and, in my view, since the Judicature Act’s equity is paramount over the common law where they are in conflict, and one can rely on that equitable doctrine to allow a party with an arguable case to have the right of cross-examination, the right of presenting and testing evidence and the right of full legal argument on the substantive issue.

The cases, in my submission, make very clear that the Court is loath to stop a proceeding unless - as I said, it can be described virtually, on its face, as completely hopeless.  There is a line of authority, sir.  I looked at Dey’s Case and I think Cox.

HIS HONOUR:   I am pretty familiar with all these.

MR LINDON:   Exactly.

HIS HONOUR:   Every week these applications were made in the Court of Appeal and I would dispose of about three of them by the time we have been talking here.

MR LINDON:   Yes.  I was very aware of that point you made last time, sir, and there is an article in the Institute of Judicial Administration, a recent article on time limits in court proceedings, and one particular page does refer to the question of the potential problems of perceptions of unfairness in time limits in certain cases.

HIS HONOUR:   I am very conscious of that and I think you will agree that I have not imposed unreasonable time limits.  I have sought to get to the point and allow you fairly to develop it but it has to be done within the other burdens that exist in the Court, including on me.

MR LINDON:   Yes, sir.  I think, your Honour, that is what I am virtually saying.

HIS HONOUR:   I am pretty familiar with the principles and I have never, in my years as a judge, struck out a case which I considered to be fairly arguable.

MR LINDON:   Right.

HIS HONOUR:   Or prevented a case from going to trial which ought to go to trial on its merits.  Ordinarily, people should have their day in court.  That is a well-known principle.

MR LINDON:   Yes, that is right.  I think the formulation though - I think it goes beyond being fairly arguable.  My submission would be that, particularly if we are looking at a declaration where equitable principles are really in operation, it does not have to be fairly arguable even; that it is sufficient if it is something less than that, if, at the end of the day there may be something - there may be a conflict of evidence or there may be some argument, there may be some issues that need to be resolved.

HIS HONOUR:   Very well, proceed on that footing.

MR LINDON:   Thank you, sir.  I will not take you through the material - can I assume that your Honour has at least scanned the - - -

HIS HONOUR:   I have scanned it.  I have not read it all.  I have not had the time.

MR LINDON:   I understand that, sir. 

HIS HONOUR:   However, I have got it before me now and if you like to take me to any matter in particular that you want me to look at either in respect of this summons or in respect of the Commonwealth’s application, then I will look at it.

MR LINDON:   First, I am also at pains before you this morning trying to keep it short and to not be coming - be making submissions that should have been put last time through a back door.  So, I do not know - I will attempt to do that very briefly but - - -

HIS HONOUR:   What I have returned before me this morning is the summons which you have issued.

MR LINDON:   That is right.

HIS HONOUR:   That summons seeks five orders.  First, that the matter be referred to a Full Court.  I do not intend to refer it to a Full Court.  Secondly, that I strike out the Commonwealth’s application or adjourn it to the hearing of the substantive claims.  Thirdly, that the hearing be reopened to hear further evidence.  Fourthly, as to costs; and, fifthly, concerning disqualification.  I do not intend to disqualify myself.

MR LINDON:   No.

HIS HONOUR:   So that the three applications that are before me on the summons are 2, 3 and 4.  Order 4 is consequential and therefore, effectively, we have to concentrate on 2 and 3.

MR LINDON:   Right.  And does your Honour wish to indicate that I am really looking at No 3 and that 2 is out of the question or is that still a live application in your view at the moment?

HIS HONOUR:   Well, what do you have to say about 3; anything further about that?

MR LINDON:   On 3 or on 2, sir?

HIS HONOUR:   Well, either, but efficiently.

MR LINDON:   Very briefly:  your Honour will recall last time that there was some discussion about - my basic assertion was that this declaration is really not very controversial because it is already the law in Australia.  Under the statute law as it already exists, both declarations 1 and 3 can be made out and in exhibit No 12, sir - - -

HIS HONOUR:   I think we went through all this last time.  There is no need to repeat it.  It is still fresh in my mind.  There is no need to repeat that unless there is something in the affidavit which, by chance, though read on the summons, is in some way relevant to the previous motion.  I will look at it in that connection if you refer me to it but you should not repeat the arguments of the last occasion.

MR LINDON:   No.  Exhibit 12, 1 and 2, sir, I just take you to those.  They are two proceedings that are - - -

HIS HONOUR:   Very well, I have exhibit 12.1.

MR LINDON:   Right.  Exhibit 12.1, the first page, sir, you will see is a notice to quit which is directed to the Chief of Facility at Pine Gap and in bold type itemises the three statutes which I have already cited to this Court.  It is followed by a document headed “Draft” which is a detailed statement of claim pleading the Security Treaty Act 1952, the Pine Gap Agreements, Common Knowledge about the Pine Gap facility - - -

HIS HONOUR:   What is the status of this?  Was this filed in the court or ..... for filing?

MR LINDON:   No, it is a draft.  It is in the process - the notice to quit was given on 1 December and this is in the process of being developed but I put it in to show your Honour in great detail the point that I made last time about the particular sections of the legislation that I put to you;  Your Honour, the legislation which your Honour said you were not aware of.

HIS HONOUR:   Yes, very well.

MR LINDON:   If your Honour were minded to peruse that.  Page 9 of this document, sir, is headed “STATEMENT OF CLAIM” and it is an index to the statement of claim and lists the matters that are pleaded in that statement of claim.  Whereas this writ currently under consideration has been attacked for being general and vague and being hypothetical, what I do with this writ is to demonstrate that these issues are not hypothetical.  These issues are not vague and general but that they can be specifically pleaded.

HIS HONOUR:   I think I have to be careful not to proceed into consideration of this statement of claim which has not yet been filed.  It is enough for me to concentrate on the statement of claim that is before the Court.  You ask me to use it in some way to show, to be convinced, that given time and the opportunity you will prepare a like statement of claim in this case?

MR LINDON:   Further, sir, I say it is virtually a legal opinion in great detail - very detailed submissions as to exactly how the three pieces of legislation we have already mentioned do make the use or the threat of use of nuclear weapons contrary to municipal law including the Constitution.

HIS HONOUR:   Yes.  Well, I will have a look at it in that light.  What is 12.2?

MR LINDON:   12.2 were documents that were presented to the Deputy Registrar of the High Court in Melbourne on the date that they bear and I rely on those.  Once again, sir, that is a notice that was given to the Commonwealth about stopping a nuclear submarine.  It was sent to the submarine.  And then there are proceedings that were taken on the basis of that notice which - - -

HIS HONOUR:   What has happed to those proceedings?

MR LINDON:   They were considered by the Registrar for two hours.  I applied for an immediate video hearing with this Court and with the submarine and there was some problem with that.  The Court is not set up to do that apparently and by the time - ultimately, sir, the submarine docked and the proceedings were withdrawn because the parties were very concerned about incurring costs.

HIS HONOUR:   So, the proceedings were withdrawn.

MR LINDON:   That is right.

HIS HONOUR:   Why do I look at them?

MR LINDON:   They were not officially filed, sir.  They were considered by the Registrar and then - - -

HIS HONOUR:   What is their relevance to this application?

MR LINDON:   Once again, sir, it shows that these issues are not merely hypothetical, that they are - the question of the lawfulness or otherwise of the use or threat of use of nuclear weapons is an ongoing issue, will not simply go away.

HIS HONOUR:   Very well, that is 12.1 and 12.2.  What else is there in this that I should look at?

MR LINDON:   Sir, it also shows that rights, duties or obligations are in fact in issue in these proceedings, in my submission.  Your Honour will see there is material in there concerning the humans right defenders declaration and material of the defendant on citizenship.  My point there is that there are certain obligations of the Commonwealth towards citizens to enforce the law and that they are, in fact, in issue in this case because this case will clarify whether citizens have any right to be protected by law enforcement; whether the Commonwealth has any obligation to enforce those laws; whether there is any duty on particular members of the Commonwealth to enforce those laws.  They will flow from the making of a declaration although, just like an advisory opinion, the declaration is not, as it were, may not have necessarily immediate practical consequences.  Just a ruling on the law could help clarify that.

Sir, there is other material there - the material that was marked for identification last time, I am not sure if I can formerly tender that and bring it up to the same level of evidence as exhibit 6 to 19 but I would seek to have the documents MFI 1 to 5 made exhibits 1 to 5, if you like, so that we then go on with exhibit 6 to 19.  I say, on the basis of that material, it shows that there are various duties and obligations of the Commonwealth Government in relation to external matters, like negotiating a test ban treaty and such international matters but there are also domestic obligations on the defendant as well.

HIS HONOUR:   Just let me ask you to pause there.  Mr Solicitor, I think it is true that on the last occasion these documents were marked 1 to 5 for identification only and were not tendered.  They are now tendered.  I have to confess to you that I will be taking them into account subject to your protest that they are not relevant.  Do you have any objection to me proceeding ‑ ‑ ‑

MR GRIFFITH:   I have no protest on tendering, your Honour.  We just submit they are not relevant.

HIS HONOUR:   Yes, very well.  Subject to the objection as to relevance and determination of their relevance, MFIs 1 to 5 are marked exhibits 1 to 5.

EXHIBITS:            Exhibits 1 to 5.....Formerly MFIs 1 to 5

HIS HONOUR:   Is there anything else in this compilation which you are actually reading on the summons which is returned before me this morning that you wish me to refer to for the purpose of considering the application which is part-heard?  I am allowing you to do that because I gave you the liberty to put further documentation before the Court and submissions.  You appeared to be content with that course.

MR LINDON:   Yes.

HIS HONOUR:   You have now put these documents before me.  If any of them are relevant to the previous proceeding I will look at them in that context.  Do you wish to identify any that I should look at for that purpose?

MR LINDON:   I say they all are, sir.  I say they are all relevant to both that and the previous.

HIS HONOUR:   Very well.  I will mark, on the same basis, exhibit LL 2, which has been tendered to be read in the summons proceedings returned today, as exhibit 6 in the previous proceedings.  I will look at them.  I cannot promise you to read every page but I will look through them.

MR LINDON:   I understand that, sir.

EXHIBIT:              Exhibit 6.....Exhibit LL 2

HIS HONOUR:   Let us therefore go back to the two matters that are before us on the summons.  The first is to adjourn the application to strike out the writ to the hearing of the substantive claims and the second is to reopen the hearing to hear further evidence including from persons who are intended to be subpoenaed, including the Solicitor-General.

MR LINDON:   Yes.  Let me just conclude 2 by saying that in my submission the question of whether there are any rights, duties or obligations to be affected within the meaning of the case law here is an arguable point.  It is not a matter that can simply be concluded either on the face of the writ, the statement of claim or, indeed, on the evidence as it has been.....but what I have shown is that it is an arguable case to characterise - at the end of the day certain actions and matters can be characterised as affecting the rights, duties or obligations of both me and the Commonwealth.  So both the plaintiff’s and the defendant’s rights, duties or obligations are affected.

Now, it may not be until the matter is fully argued that the prospects of success of my view are obvious, but certainly it is not a matter that can be dismissed summarily and ought to be dealt with at length.  I refer, in that regard, to the structure of the High Court Rules themselves which provide for summary judgment in certain matters and summary dismissal and then also provide for a system for challenging pleadings.  In my view, the principles of summary dismissal of, as it were - of dismissing the matter without calling of evidence, cross-examination or full legal submissions is not appropriate on the state of the evidential material before your Honour.

I turn to No 3, sir.  The evidence I am seeking to call, apart from the Solicitor-General and Mr Hallowell, which relates to - - -

HIS HONOUR:   Remind me who Mr Hallowell is?

MR LINDON:   Sorry, he is in Court instructing Mr Griffith this morning.

HIS HONOUR:   Do you usually pick on your opponents in this fashion?

MR LINDON:   Well, I am sure they appreciate you standing up for them, sir.  I feel pretty oppressed.  My submission, of course, is that the Commonwealth ‑ - -

HIS HONOUR:   The problem with it, as you understand, is that if it is permitted it deprives the party opposite of representation.  That is a tactic which has been used in the past and is not lightly embarked upon by a court.

MR LINDON:   I do not do it for that possibly improper and certainly, in my view, irrelevant reason.  I am sure that there are many other - the defendant has many, many lawyers from whom it can choose and I am not seeking to do that.  In light of your Honour’s comment about picking on my opponents, I would just say that, in my submission, the Commonwealth’s use of this procedure is itself an abuse of the process of the Court because it is oppressive to me as a citizen.  It seems to me that the Court ought not lightly allow the only member of the United Nations in Australia to come to this Court and attempt to strike out a written statement of claim alleging breaches of fundamental human rights because one only has to stand back and see that I have been taking various actions in various courts for nine years, sir.  I have tried defending criminal actions, I have tried injunctions with exhibited evidence attached from experts, I have tried a fair gamut of legal options and it is quite clear to me and to many Australians that the courts of Australia will not deal with nuclear weapons.  For some reason it has been impossible to get any case concerning nuclear weapons to be dealt with, certainly at this level of the Australian judicial system and - - -

HIS HONOUR:   That is because it is said that they are not apt for curial disposition.  They are apt for political disposition.

MR LINDON:   That is because that is said, sir, and that is a matter on which we would take issue.  Your Honour said in 1983, “It is a fairytale that judges do not make law” and this was echoed by various other judges since then, Chief Justice Mason amongst them.

HIS HONOUR:   I was merely quoting what Lord Reid had said 20 years before that.

MR LINDON:   It is no news to anyone and as your Honour adverted to the last time, the question is in what circumstances one does that.  And one does it, in my view, by looking at the policy considerations on either side.  When one looks at the policy considerations on either side, then, in my view, I can make the submission that it is oppressive and it is an abuse of this Court’s process for the Commonwealth to come to this Court to make this application in these circumstances against this plaintiff.             The other subpoenas which ‑ ‑ ‑

HIS HONOUR:   That must have been clear to you at the outset of the proceedings before me.  Why did you not, before those proceedings, seek to subpoena witnesses, including the Solicitor-General?  Why do you leave it until the proceedings have commenced, and now recommenced, before me?

MR LINDON:   I did actually ‑ ‑ ‑

HIS HONOUR:   You see, if you do these things beforehand, people can organise their affairs and they can take steps that they consider to be appropriate.  But if you leave these applications until a belated stage in the proceedings you have to understand that courts have to be careful about allowing such applications to succeed, otherwise they will themselves become a process for abusing the proceedings of the court.

MR LINDON:   Quite, sir.  On the last occasion, which was only 14 days ago, I did raise the prospect of section 36 of the Evidence Act and making an application to cross-examine the Solicitor-General.  I also adverted to the cross-examination of Mr Hallowell.  Mr Hallowell was not in Court.  I note arrangements have been made for Mr Hallowell to be in Court.  He is aware that I want to call him as a witness and, certainly, Dr Griffith is aware of ‑ ‑ ‑

HIS HONOUR:   But although that application was raised, the proceedings went to conclusion and I took the application to have been abandoned because all that was outstanding, as you remember, Mr Lindon, was the preparation of certain further written submissions which, out of the ordinary, I gave you the facility to do because of your obvious sincerity and the importance in general terms of the matters that you are raising before the Court.  Instead of that, given a further fortnight, you put on a summons which seeks five further heads of relief.

MR LINDON:   I say two things in relation to your Honour’s comments.  Firstly, there was a pressure of time.  Your Honour suggested at the outset that an hour was the time you were thinking of allowing, as your Honour did say in the proceedings you have already allowed more time than many criminals in gaol have been allowed.  So there was a pressure of time and it seemed to me it was more important to try and cover the gamut of matters that I wished to raise, which I was attempting to do, and there is also, I must say, some element of cowering before the Bench.  I mean, obviously your Honour ‑ ‑ ‑

HIS HONOUR:   I have not noticed that.

MR LINDON:   Oh really.  I certainly do not think ‑ ‑ ‑

HIS HONOUR:   In any case, I do not ever encourage it.  You have been given a full chance to put your submissions and I will sit here and listen to them until you have completed them in reasonable time.

MR LINDON:   Thank you, sir.  I shall not be much longer.  But I think that a fair reading of the transcript will show that I maintained my request for an adjournment throughout.  I began that way, I ended that way and I mentioned it several times during.  I did advert to the procedure which I am now formally seeking to adopt whereby I have given proper formal notice, certainly to the Solicitor-General, and I believe that Mr Hallowell is properly on notice because he too has read the transcript.  So that neither of those people are taken by surprise by the application.

The other witnesses which I believe are important are two expert witnesses, one United States’ official and three Australian Government officials.  May I just enumerate them for you?

HIS HONOUR:   Yes.

MR LINDON:   The first expert witness is a man called Joseph Rotblat who won the Nobel Prize last year and is Emeritus Professor of Physics at the University of London and made submissions to the International Court of Justice on the nuclear weapons hearing and was appointed by the Australian Government to be a member of the Canberra Commission on the Complete Elimination of Nuclear Weapons.

HIS HONOUR:   Is his submission to the International Court of Justice in exhibit 6, this large compilation of documents?

MR LINDON:   No, sir, exhibit 6, I believe, is a copy of the ‑ ‑ ‑

HIS HONOUR:   I am referring to LL2, the large exhibit which you have tendered this morning.

MR LINDON:   Exhibit 6 is the Parliamentary Committee Inquiring Into Nuclear Testing and Non-proliferation.  Exhibit 5?

HIS HONOUR:   I misnumbered it then.  This is exhibit 7.  I am referring to this large compilation of documents which you have asked me to read on ‑ ‑ ‑

MR LINDON:   Sorry.

HIS HONOUR:    ‑ ‑ ‑which I am reading also in connection with the previous application by the Commonwealth.  Is there any mention in this document, which is to be marked exhibit 7, not exhibit 6 as I previously stated ‑ ‑ ‑

MR LINDON:   No, sir, you are right; it is exhibit 6.  I am sorry, I was referring to the numbers inside the exhibit.

HIS HONOUR:   I see.  I go back to the question:  is there anything in exhibit 6 which is relevant to Professor Rotblat’s evidence or submission?

MR LINDON:   Yes, something in exhibit 5, I believe, are the documents in relation to the Canberra Commission.

HIS HONOUR:   Yes, I remember reading that.

MR LINDON:   And you will see that his name is mentioned in there.

HIS HONOUR:   Very well.  But that mentions his appointment; it does not mention his views.

MR LINDON:   No.  It has a brief neutral synopsis of his achievements in his career.

HIS HONOUR:   Very well, you have identified what you want to call him for.  Why are the three other witnesses?

MR LINDON:   I also tender a copy of his submission to the World Court and an article by him published - his first article since winning the Peace Prize, published in January of this year in The Age.  What I call him for, sir, if I may just briefly say, is that he has read the written pleadings prepared by the United Kingdom and the United States, their view of the legality of use of nuclear weapons is premised on three assumptions which he says is false in his professional opinion and even in the hypothetical case, that weapons developed have a negligible effect on civilian population.  Any use of such a weapon is likely to start a nuclear conflict.

HIS HONOUR:   Show those to Dr Griffith.

MR GRIFFITH:   Your Honour, I should indicate we have not received copies of the first five exhibits that have now been tendered.

HIS HONOUR:   I will make sure that you get copies of those.  I thought they were provided on the day.  If they were not, they will be copied in the Court Registry and sent to the Commonwealth.

MR LINDON:   I am quite prepared to do that.  I assumed they are the Commonwealth’s own documents and there has been no request from Mr Hallowell or any ‑ ‑ ‑

HIS HONOUR:   I will have my associate make a list of them and those which you do not have we will copy and send to you after these proceedings.

MR GRIFFITH:   We do have the transcript of our submissions to the International Court.  We do not have the others.

HIS HONOUR:   Is there any objection to that document being marked on the same basis?

MR GRIFFITH:   No, your Honour.

HIS HONOUR:   Very well.  The material relating to the opinions of Professor Joseph Rotblat is exhibit 7.

EXHIBIT:              Exhibit 7.....Opinions of Professor Rotblat

MR LINDON:   The next witness is a man called Dr Desmond Ball, who is at the Strategic and Defence Study Centre at the Research School of Pacific Studies at the Australian National University in Canberra.  I spoke to Dr Ball on Friday afternoon and he was leaving tomorrow morning for London and doing a full day seminar which he is chairing which begins at 8.50 this morning and finishes at 5 and was unavailable for Court today and, in any event, it seemed to me I ought to seek ‑ ‑ ‑

HIS HONOUR:   Just outline what you say in general terms is the evidence he could give.

MR LINDON:   Right, sir.  He has written extensively some 10 or 15 books on the role of the bases at Nurrungar and Pine Gap and the United States facilities generally in Australia in nuclear targeting of civilian populations in allowing information to flow backwards and forwards from the Pentagon and Langley, Virginia, where the central intelligence agency are based, to Pine Gap and Nurrungar about the strategic warfighting information in which nuclear weapons may be deployed.

HIS HONOUR:   What is his substantive post?  He is professor in ‑ ‑ ‑

MR LINDON:   Strategic and Defence Study Centre, Research School of Pacific Studies in Canberra.  I tender a couple of his articles just so one can get the picture of what he is talking about, because my submission would be that both Dr Rotblat and Dr Ball are witnesses that could, in fact, by made court experts, court appointed experts within the rules.  But failing that, and that notice needs to be given of what they are going to say, anyhow I hand up excerpts from three of his books.  One is called “Defence Aspects of Australian Space Activities”, published in 1992; the next one is a critique of strategic nuclear targeting which details at length the fact that the deployment of nuclear weapons is an integral part of United States defence, particularly military and warfighting strategy; and also an extract from a book of his called “The Ties that Bind” which is about intelligence co-operation between the United States and Australia.

HIS HONOUR:   On the same basis, subject to their relevance, are you prepared to consent to that document being ‑ ‑ ‑

MR GRIFFITH:   Provided we get copies in due course, yes.

HIS HONOUR:   You do not have copies now for the Commonwealth?

MR LINDON:   No, I am afraid I do not. 

HIS HONOUR:   Very well, exhibit 8.

MR LINDON:   And part of exhibit 8 should also contain a dozen-odd call slips from the State Library of Victoria listing Dr Ball’s other works.

HIS HONOUR:   Very well.  All of that will be part of exhibit 8.

EXHIBIT:              Exhibit 8.....Articles by Dr Ball

HIS HONOUR:   Who is the third person?

MR LINDON:   I am just making sure I have covered the relevance of his evidence to these proceedings.  The point of that evidence is that it was suggested last time that this is really a hypothetical and theoretical exercise and it does not affect any existing rights and obligations.  Once it be admitted by the defendant that in fact Australia is complicit or does participate in the nuclear targeting of civilian population then it does become not a hypothetical question but a practical question.

On that topic, last time I adverted to certain statements in the Parliament about these bases and to a defence white paper.  Now, I have got copies of those which I can put before you, for the sake of completeness, so that those matters are properly before you.  In that light, I tender a copy of the ministerial statement by the then Prime Minister, Mr Hawke, in 1988 on 22 November about the joint defence facilities and a question without notice on 5 November 1991 answered by Senator Robert Ray, together with a three-page excerpt from the defence white paper of 1994 on defending Australia, which once again talks about the bases.  Just so those matters are properly before your Honour.

HIS HONOUR:   Those documents will become exhibit 9, admitted on the same basis.

EXHIBIT:              Exhibit 9.....Ministerial statement by Mr Hawke;   question without notice of 5/11/91
  answered by Senator Robert Ray;
  three page excerpt from defence white
  paper of 1994 on defending Australia.

HIS HONOUR:   Will you take those documents and mark them, please, otherwise they will get lost.

MR LINDON:   The third witness who I seek to call is the person named on the first page of exhibit 6, document No 12.1, the notice to quit.  His name is Mr Stephen Provines.  He is the Chief of Facility at Pine Gap and he works for the US Defense Department.

HIS HONOUR:   Where is he named in document 12.1 in exhibit 6.  I see, at the top.

MR LINDON:   The very first line, sir. 

HIS HONOUR:   What is his position?

MR LINDON:   He is the Chief of Facility at Pine Gap and he is with the US Defense Department.

HIS HONOUR:    Very well.  He is the third person you wish to call.

MR LINDON:   He is the third person.

HIS HONOUR:   Who is the fourth?

MR LINDON:   Does your Honour understand why I seek to call him or is it obvious on its face.

HIS HONOUR:   I imagine that it is in order to bear out or to seek from him evidence that is relevant to what you suggest is the breach by the United States in Australia of requirements imposed by the various statutes of the Parliament which you refer to in the notice to quit.

MR LINDON:   And he may well choose not to answer those questions and  may well have to have previous inconsistent statements put to him.  Now, that completes my, if you like, expert witnesses.  The other witnesses I seek to call are Mr Alexander Downer, the Foreign Affairs Minister, and I tender three copies of faxes to him of documents that are before your Honour; a copy of the writ; a copy of letters to the then Prime Minister and then Foreign Affairs Minister, Mr Keating ‑ ‑ ‑

HIS HONOUR:   Do these prove any more than that you have written letters to Mr Downer sending him the process of the Court?  Is there any reply from Mr Downer?

MR LINDON:   There has been telephone conversations between myself and his assistant.

HIS HONOUR:   Any document comprising a reply from Mr Downer or is this all material emanating from you, because if there is a reply of some kind, then I think it may be in some way relevant, but if it is simply letters you have sent it is entirely self-serving.

MR LINDON:   That is why I wish to call him as a witness because he can then give evidence as to conversations that were had in his presence with his adviser, Greg Hunt, and myself about this matter and also about a subsequence conversation about nuclear submarines in which, in my submission, I was being alerted to the arrival of the USS Helena by his office.  These letters are not self-serving, sir, because they simply show that Mr Downer received the information and may have taken action or formed a view in relation to it.  His adviser, for example, Mr Hunt, told me, if I may apprise your Honour of the kind of evidence that will be forthcoming, that on one view Australia is clearly, by allowing these bases to be here and the connection with the US nuclear warfighting strategy, Australia is complicit - and that is within the ordinary definition of complicit, it is well accepted - in crimes against peace and humanity and that its activities are, in fact, illegal under international law and Australian law.

So it may be that Mr Downer has changed his view or it may be that Mr Downer still maintains that view-

HIS HONOUR:   Mr Downer has not expressed a view.  A person in his staff, according to your statement, has said something.

MR LINDON:   But this is in the line of material that was put to you last time.  If you remember, there was the file to do with the apparently misguided application for prerogative writs against the Deputy Registrar and a Justice of this Court your Honour looked at, because it contained in exhibits 1 and 3 the full test of the statements by the Solicitor-General and the Foreign Affairs Minister to the ICJ.  But exhibit 2 of that material, remember, contained newspaper clippings in which Senator Evans and Mr Downer were accusing each other in various ways about the legitimacy and the sincerity of the Australian position to the World Court on the illegality of nuclear weapons and Mr Downer states his view there and your Honour will recall I also handed up a clipping that occurred - a press article during the election, in which both the Liberal Party, which Mr Downer belongs to is common knowledge, and the Labor Party, Senator Evans, were making claims about their commitment to the complete elimination of nuclear weapons and topics of that kind.  So that it is not - when your Honour says he has not expressed a view, he has expressed a view and those views are by a letter, which is totally his own work, and not mediated by the press, which is one of the exhibits that was passed up to your Honour.  So I seek to tender these three documents.

HIS HONOUR:   It may save time if we mark that as exhibit 10, correspondence with Mr Downer and his staff

EXHIBIT:              Exhibit 10....Correspondence with Mr Downer and
  his staff

MR LINDON:   Thank you, your Honour.

HIS HONOUR:   Yes.

MR LINDON:   Now, the other two witnesses, not unsurprisingly, perhaps, your Honour, are the Honourable Paul Keating, the Honourable Gareth Evans and, debatably, Senator Robert Ray.  Once again, sir, I have material both from me and from them in relation to this matter.  Your Honour will recall that exhibited in exhibit 6, document No 8, are copies of letters from the Prime Minister and the Minister of Defence, his departmental officers, noting the receipt of copies of the writ and what I have here, sir, are a series of letters from me requesting copies of, for example, the Prime Minister’s speech marking the 50th anniversary of the United Nations, his announcement that a major diplomatic push by Australia to refocus world attention on the abolition of nuclear weapons and on the United Nations General Assembly resolution, copies of speeches and transcripts supplied by the Department of Foreign Affairs, a copy of my letter to the Commonwealth of Australia, which is referred to in that document, and similarly, my faxes to the Minister for Foreign Affairs and to his Department who have supplied various documents to me.  I would seek to tender all these documents as a bundle, sir.  Once again, I have taken your Honour’s previous indication that you think it is simpler just to take them pro tem.

HIS HONOUR:   All of those documents will be exhibit 11.

EXHIBIT:              Exhibit 11.....Bundle of documents

MR LINDON:   Now, sir, there is one final matter in relation to those that in the file, I think it was No 305 of 1995 which was the prerogative writ file from last time, my affidavit ‑ ‑ ‑

HIS HONOUR:   Concerning Justice Gaudron and the Registrar?

MR LINDON:   Yes, that is right.  Your Honour will recall looking at exhibits 1 and 3 which was the compendium of the - also exhibited in that exhibit are copies of the Prime Minister’s statements in relation to nuclear testing and various other matters which I say are relevant to support my ‑ I would ask that the material exhibited and exhibits 1 to 3 be perhaps marked exhibit 12, for the sake of completeness, that they can be said to be properly ‑ ‑ ‑

HIS HONOUR:   Would you identify that again.

MR LINDON:   Exhibits 1 to 3 of my ‑ ‑ ‑

HIS HONOUR:   Were they not marked on the last occasion?

MR LINDON:   I do not think they were.  I think we did 1 to 5 on the documents I was tendering.  I think you referred to them but we did not formally mark them.

HIS HONOUR:   These are exhibits 1 to 3 in the failed prerogative proceedings directed to the Registrar and Justice Gaudron?

MR LINDON:   Yes.

HIS HONOUR:   You ask that they be marked as exhibit 12?

MR LINDON:   Yes, sir.

HIS HONOUR:   Do you have any objection, Dr Griffith, if that is done on the same basis?

MR GRIFFITH:   No, your Honour.

MR LINDON:   Could the Court note that also includes the extra clipping ‑ ‑ ‑

HIS HONOUR:   Have you got copies of those there, because otherwise it is difficult not to lose track of all these materials?

MR LINDON:   They are part of a book here, but certainly that will give my friend a chance to ‑ ‑ ‑

HIS HONOUR:   These relate to speeches of Mr Keating, are they?

MR LINDON:   Yes, I will just take your Honour to them.

HIS HONOUR:   It is not immediately apparent how speeches can be relevant to the ascertainment of legal rights.

MR LINDON:   It is not, sir? 

HIS HONOUR:   I can see how it is highly relevant to political questions but I am sitting in a court of law.

MR LINDON:   Yes, I am very grateful we are in a court of law because these documents can be examined in a non-political fashion.

HIS HONOUR:   It may save time if you simply flag those documents.  I will have you handed a collection of flagging paper and they can be copied later and put with the exhibits.  Give that to Mr Lindon, please.  Before you leave today, I will have copies of these documents photocopied for the Solicitor-General so that they are with his papers.

MR LINDON:   Thank you, sir.

HIS HONOUR:   I think the earlier exhibits are still in Canberra.

MR LINDON:   Oh, are they?  I have just flagged three matters in here.  The whole exhibit runs for quite a few pages but it basically repeats what we already have, which is the ‑ ‑ ‑

HIS HONOUR:   Very well, the three documents that you have flagged will be photocopied and they will be marked exhibit 12.

EXHIBIT:              Exhibit 12....Three flagged documents

MR LINDON:   Could I, with the Court’s leave, when the Court rises, flag more material in here, so I do not take up the Court’s time, but I am basically trying to avoid the Court recopying the ICJ submissions.  So could I, with the Court’s leave, continue to mark ‑ ‑ ‑

HIS HONOUR:   If you do that.  You identify them to the associate, show them to Dr Griffith, and they can be photocopied and put with the exhibit No 12.

MR LINDON:   Part of exhibit 12 also is a loose newspaper clipping which you put with exhibit 2 of these exhibits last time, so I think that is identified.

HIS HONOUR:   Very well.  Yes. 

MR LINDON:   I also have copies of all the various treaties which, if your Honour would find of assistance, I could hand up the copies of the various Pine Gap treaties and the security treaty that was ‑ ‑ ‑

HIS HONOUR:   I do not see that that would assist me, having regard to the terms of the statement of claim.

MR LINDON:   Thank you.  Certainly they are available, if the Court wishes.  Now, that then brings me to my two witnesses present today and who are competent - who are compellable, in my view, and under section 36 of the Evidence Act, I apply to call Dr Griffith to give some evidence to the Court on this matter, which may be useful to the Court on this matter.

HIS HONOUR:   You are referring to Dr Griffith and Mr Hallowell?

MR LINDON:   Yes.  I call Dr Griffith to the stand.

HIS HONOUR:   Who do you wish to call first?

MR LINDON:   Dr Griffith, sir.

HIS HONOUR:   What is your attitude to this, Dr Griffith.

MR GRIFFITH:   I submit that the plaintiff has to show relevance, your Honour, before he takes this course.  It is an extraordinary course to have on a strike-out summons.

HIS HONOUR:   What is the provision of the Evidence Act section 36?  Would you read that to the Court?

MR LINDON:   Yes, sir.  Section 36(1) says:

The court may order a person who:

(a)  is present at the hearing of a proceeding; and

(b)  is compellable to give evidence in the proceeding;

to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

I pause there, sir, to say that in so far as the previous witnesses are concerned, and in so far as I need leave, I am seeking leave to issue subpoenas for those witnesses.  I indicate that Dr Ball is out of the country, will be back in the country in June.  I do not have details of Dr Rotblat’s ‑ ‑ ‑

HIS HONOUR:   Leave them to one side for the moment.  You do not have that application in your summons.  It is enough that I deal with the matters that are before me at the moment.  You can make any application for subpoenas, if the summons survives, to the Registrar.  Meanwhile, in relation to Dr Griffith, what is the relevance, or possible relevance, of his evidence, given that if he is called as a witness, that will deprive the Commonwealth of its counsel.  I repeat that you will understand the hesitation of a Court allowing litigants to call their opponent, if this became a common practice, and it has been ventured, it would result in depriving parties of their legal representation which would be undesirable.  So what is the relevance of Dr Griffith?  He may be compellable, but why should he be compelled.

MR LINDON:   I will answer that question.  May I just return to something that your Honour said about the fact that the subpoenas will await the survival of this summons and approach the registry.  By the terms of paragraph 3 of my summons, I sought:

to hear further evidence from witnesses to be subpoenaed by the plaintiff upon the hearing of this summons, including Dr Gavan Griffith ‑ ‑ ‑

HIS HONOUR:   Just a moment.

MR LINDON:   So it is not, to the extent I have ‑ ‑ ‑

HIS HONOUR:   This is relief to postpone the application.  It is not a substantive application for leave to issue subpoenas.  It foreshadows such an application, I think it is fair to say, but it does not make the application.

MR LINDON:   In so far as I am at fault in my drafting, I must bear the impact of that ‑ ‑ ‑

HIS HONOUR:   I am not taking a technical point of that kind.  I am just saying that it is incidental to, ancillary to the summons as you have explained it.  If the summons survives, if the proceedings, the statement of claim survives, and if one of the courses that you have urged in the summons is taken, then it will be relevant to consider an application for the issue of a subpoena.  That would normally be done by the Registrar, not by a Justice.  Therefore that is a matter which I can postpone until we see what happens to the statement of claim and to the summons.

MR LINDON:   I follow you, and just for the sake of clarify, do I take it then that if your Honour is minded to pursue the course pressed on you by paragraph 3, then there will be an opportunity down the track for me to subpoena those witnesses and to have, as it were ‑ ‑ ‑

HIS HONOUR:   If on any basis, either by my order or by the Full Court’s order if you are discontented with any order I make, your statement of claim survives and is permitted to proceed, then obviously you will have facilities to call witnesses to support your case.  And that would be a matter for you to apply to the Registrar.

MR LINDON:   Yes, sir, but what I am seeking here is to call further evidence in relation to this summons.  I am asking to ‑ ‑ ‑

HIS HONOUR:   I appreciate that.

MR LINDON:   Oh, you do, fine

HIS HONOUR:   I appreciate that you are seeking to say that if only you could be allowed to call the witnesses, they would demonstrate that there is sufficient substance in the statement of claim that it should be allowed to go to trial.  That is what you are seeking to so, is it not?

MR LINDON:   Yes, thank you.

HIS HONOUR:   I understand that.  But first of all you have now asked that Dr Griffith be called forward to the witness‑box and he is self-evidently the legal counsel of your opponent.  I have explained the reluctance which courts have to deprive parties of their counsel by the facility of their being called as witnesses.  Such applications have been made before me in the past.  Courts are generally reluctant to accede to them.  But in a proper case, courts will do so.  Now, the question I am asking is what is the relevance of any evidence that Dr Griffith can give, on your suggestion, that should require him to leave the bar table and to give evidence?  Because if there is no such relevance, I will not compel him.

MR LINDON:   Yes, sir.  Let me come at this and see how far I get.  First of all, despite your Honour’s comments last time that this is not a Commonwealth court, in my submission it is and the Judiciary Act and the Constitution make quite clear this is a Commonwealth court.

HIS HONOUR:   This is a constitutional court.

MR LINDON:   It describes itself in the Act as the Supreme Court of the Commonwealth of Australia.

HIS HONOUR: No, federal Supreme Court established by the Constitution.

MR LINDON:   Yes.

HIS HONOUR:   So what is the relevance of this?

MR LINDON:   If one follows that logic through, you will see that the Parliament appropriates money for the Court and that is administered by the minister.  I am not quite sure which minister it is, but that there is a - it is quite within the prerogative of Parliament and the ministry to exercise control over those funds.  I say that, therefore, it is not a situation that is comparable to that of an ordinary litigant.  An ordinary litigant does not have the connection with the Court that this defendant does.  I think that is obvious on its face. 

I say, secondly, this is the only defendant in Australia that is a member State of the United Nations with consequential legal and, in my view, equitable obligations when the defendant appears in this Court on certain applications, particularly where they are seeking to directly prevent a citizen arguing a matter of fundamental human rights and, indirectly, to achieve the political objective of having no consideration by a court of law of the legal aspect of current government policies.  Now, I hear ‑ ‑ ‑

HIS HONOUR:   Is that not part of the problem, that you are seeking to achieve a political objective?   This is a court of law and it is true that some decisions of courts of law have political consequences, but your objective is, by your own statement, a political one.

MR LINDON:   What is that, sir?

HIS HONOUR:   You said to achieve the political objective of having this matter heard by the Court.  Did I mishear you?

MR LINDON:   I am saying that in relation to the Commonwealth, sir.  I say they have a direct objective which is to stifle a citizen running a case, but have an indirect objective which is to ensure that there is no legal scrutiny of the legal aspect of ‑ ‑ ‑

HIS HONOUR:   But what is the relevance of this, first, to these proceedings, and secondly, to Dr Griffith’s possible evidence?

MR LINDON:   Because your Honour has been at pains to protect the defendant from losing his access to his counsel.

HIS HONOUR:   Not at pains, simply ensuring that it is not done unnecessarily.

MR LINDON:   Right.  And I point out that this defendant ‑ ‑ ‑

HIS HONOUR:   I would do the same if you had counsel here.  I would not readily permit your counsel to be called as a witness to deprive you of counsel, because it causes inconvenience to you and to the Court.

MR LINDON:   And in so far as it is possible, both parties should be equal.  In the Judiciary Act that is quite clear.  But one must also practically look at the resources and the ‑ ‑ ‑

HIS HONOUR:   Could you come to the point that you would be wanting to ask Dr Griffith about.  I do not seek what - you can make these submissions yourself relating to matters of generality, but you are asking to call a person as a witness.  Now, what is the evidence you would be seeking to secure from him?

MR LINDON:   I will come to that.  I just want to say that your Honour has indicated that one of your major concerns - a concern that has been expressed so far by this Court is not to deprive the defendant of his counsel.

HIS HONOUR:   That is one matter that touches the reluctance of courts to permit this to be used.

MR LINDON:   Quite, sir, and answering that ‑ ‑ ‑

HIS HONOUR:   Please do not forget that I have been sitting as a Judge for 12 years.  I have dealt with many people in positions similar to yourself.  I have always tried to treat litigants in person with the same fairness as I do any other litigant and I do not get unduly irritated by litigants in person but I have seen the tactic used of calling an opponent in order to try to deprive the opponent of the legal representative and to disrupt the proceedings.  I am not minded to allow that readily to happen.  That is why I have asked you to identify what precise testimony Dr Griffith could give that requires that the unusual course at this unusual stage in these proceedings be adopted, of his being called to the witness‑box.  You have mentioned that the Commonwealth pays for the upkeep of the Court, something I do not think is relevant; that the Commonwealth is the member of the United Nations, something I do not think is relevant ‑ ‑ ‑

MR LINDON:   And all property of the Court belongs to the Commonwealth, apart from moneys.  That is clearly spelt out in the legislation.

HIS HONOUR:   The minds and hearts of the Judges do not belong to the Commonwealth or anybody.

MR LINDON:   No questions.

HIS HONOUR:   And therefore all of these matters are irrelevant.

MR LINDON:   Not under the Livesey v Bar Association test of what bias is.  It is not actual bias, it is perceived, and clearly if the test ‑ ‑ ‑

HIS HONOUR:   Somebody has to provide the bar table at which you are standing.  It cannot be the Judges themselves.  This is really wasting time, Mr Lindon.  Now, what is the evidence that you would be seeking to procure from Dr Griffith.

MR LINDON:   The Solicitor‑General is a model litigant, as is the Attorney.  The Attorney is the leader of the bar, the Solicitor - I have taken him to be the second most senior member of the bar.  It is my submission that - the evidence I would be seeking to obtain from Dr Griffith is in several categories:  firstly, I take him to admit the document before the International Court of Justice in which he said that the threatened use of nuclear weapons is now per se contrary to international ‑ ‑ ‑

HIS HONOUR:   We have got that document.  You have tendered it to the Court.  You can make submissions about it.

MR LINDON:   Yes, yes.  He presumably was acting under instructions and he, I take it, can be qualified as a legal expert.  He says in his own statement for six years he has appeared before the International Court of Justice.  I think he is qualified as a legal expert.  I wish to establish from him what the current state of customary international law in Australia is and if it coincides with the statement that he gave, acting under instructions, in the International Court of Justice and if it is based on the reasoning laid out in some 40 pages by the speech given by the then minister.  I wish to ask him who authored the document setting out Australia’s position that nuclear weapons are per se illegal.

Now, this use of the term “per se”, if your Honour has had a chance to read that material, is quite important because what Australia is putting forward there is a change, an announced change in its previous policy, and it is also a very different view to that being put forward by the United States and the United Kingdom.  It is basically saying that whatever the situation may have been when nuclear powers started getting nuclear weapons and whenever the situation exactly changed - by analogy, I suppose a bit like - well, your Honour, I will leave it.  Australian law is familiar with things changing gradually over time and I think Bruce Kercher’s Unruly Child, History of Law in Australia, shows several instances of where there is a kind of creeping change over a period of time.  It is not actually announced all at one go.

Certainly, I take Australia’s position to be that as at 30 October 1995 that was the law.  I wish to question this legal expert on international law and he is also the Commonwealth, if you might say.  I think section 87 of the Evidence Act assumes that he is an authorised person.  I will just come to that section, sir.  “Admissions made with authority”, section 87(1) of the Evidence Act, sir:

a previous representation made by a person is also taken to be an admission by a party -

and I say that we have here some admissions by the Commonwealth as a party.

I would further argue that any admissions that are made by Dr Griffith in the box are also - can be taken to be made by the defendant.

HIS HONOUR:   Are these the two bases that you mention.  First, that he would be able to give expert evidence concerning the state of customary international law and, secondly, that he would be able to make admissions on behalf of the Commonwealth?  Is that it?

MR LINDON:   Yes.  Both those things are interrelated.  And the third question, sir, is that he, in a sense, is the party.  We do not know who the Commonwealth of Australia is but there is a chain of authority.  I wish to establish from him in this “show cause” situation I mentioned before exactly what the authority he has to speak, not just for the Attorney, not just for the Minister for Justice but for the Minister for Defence, the Minister for Foreign Affairs, the Prime Minister and the Parliament, so, both the executive and the legislature.  I want to put certain matters to him which are inconsistent with his stated position that he has instructions from the defendant.  He has instructions from the Attorney-General, I cannot dispute that, but whether that means he has instructions from the Commonwealth is another story.

This is not being done, sir, to disrupt the proceedings or deprive the defendant of counsel because there are many other counsel the defendant can obtain.  The Attorney-General’s legal practice is the foremost provider of legal services to the government and has many other lawyers.  That is the third matter, sir.

The fourth matter is to ascertain from the defendant, if I may then take him to be the defendant or able to speak on behalf of the defendant, two things:  first of all, whether the defendant is aware of its own legislation as a matter of fact; whether the defendant was aware before they were drawn to its attention at the last hearing of the particular legislation which your Honour noted you were not aware of in relation to - which I say makes unlawful under municipal law the threat or use of nuclear weapons.  So that matter. 

And, secondly, as to my particular circumstances on standing and on special interest because you see, sir, it is my submission - and we are familiar with the case of Cachia v Hanes - there are many costs which, in the unlikely event that I was successful in this matter and to ask for costs, I would not be able to obtain.  But I wanted to put to the Solicitor-General as a leader of the Bar and as a very experienced practitioner that the amount of time and expense that has been invested by putting to this witness various aspects of litigations in which I have been involved over the past nine years, that the amount of time and effort is a very, very substantial investment and that that would clarify, if you like, your Honour, some of the special interest that I have in seeing this matter through.  It would also clarify, sir, through this witness, that the matter does not concern merely a hypothetical matter and that it does concern the rights, duties or obligations of the Commonwealth and of myself.

I think I have outlined the matters that I say I can establish through this witness.  They are clearly all relevant.  I do not believe I have to go further - I believe there are matters on which this witness will be declared an unfavourable witness and I will have to put previous matters to him, so I do not believe I have to, in the presence of this potential witness, indicate the precise way in which I will seek to obtain that evidence or the matters I will seek to put to him, particularly on this question of hypotheticality and on the rights, duties or obligations.

HIS HONOUR:   Yes, very well.  I understand those four grounds and I do not consider that any of them are such as to require Dr Griffith to be called.  That does not prevent you making comment and argument on the basis of what is in the record which includes his statement before the International Court of Justice.  That can be commented on without embarrassing him or requiring him to be called.

MR LINDON:   But that was not the only footing on which I put it, but your Honour says you do not consider any of those to be - - -

HIS HONOUR:   I have that material before me but as to oral testimony, I do not think any of the reasons that you have given are sufficient reasons to require him to give evidence and I will give my reasons for that course in due course when I dispose of the matter.

MR LINDON:   And that is giving weight to the paramount right of a litigant in a court of law, not in a political arena, to actually call someone - that no one is above the law in terms of being called as a witness?

HIS HONOUR:   No, no one is above the law but there has to be shown some relevance as to why a witness who is the opposing counsel in a matter should be called.  No such relevance has been shown.

MR LINDON:   Even in relation to the facts in issue, the hypotheticality and the - - -

HIS HONOUR:   None of those facts in issue has been shown that Dr Griffith could in any way throw any light by oral evidence.

MR LINDON:   Right, sir.  Mr Hallowell, do you want to hear me briefly on that.

HIS HONOUR:   Is he in the same position?  Is there any additional basis on which you ask to call him forward?

MR LINDON:   No.   Well, there are certain letters I was going to put to Mr Hallowell in relation to my request for the chain of evidence to be - perhaps I will hand those up so you can see that I basically requested that he identify - - -

HIS HONOUR:   Show it first to Dr Griffith, if you would.

MR LINDON:   - - - the laws under which, you know, he is acting in the chain of instructions and I will just take the other document.

MR GRIFFITH:   It is about costs.

MR LINDON:   This is about costs but it shows that I have repeatedly asked for - the second letter, in particular, sir, I ask for the identity of the instructor and the authority of the instructor.

HIS HONOUR:   Is this invading the confidentiality of a client?

MR LINDON:   Sir, that is a matter that could be raised but I am at pains to say in this letter that I do not demand to know the content of the communication but the fact of the identity of the client and the authority, statutory, administrative or otherwise, from client to solicitor. I mean, clearly, sir, when one is dealing with the Commonwealth of Australia which is an invisible entity and where the structure of that entity is set out by the Constitution and other legislation, where a citizen arguing a human rights matter asks to know who is instructing the defendant’s lawyer, where it is not a case of it being a person - if Mr Hallowell, for example, was the client, I can see Mr Hallowell, I can see that he is instructing Dr Griffith, no question. I look over there, looking for the Commonwealth, and I see two lawyers or do I see two members of the Commonwealth since they are employees? It is hard to say. But given my submission to you last time ‑ ‑ ‑

HIS HONOUR:   You are sounding more and more like Mr Clive Evatt, QC, who always addressed juries telling them that his client was in court but that the defendant was not in court.  I suppose you could say the same thing:  you are here but the Commonwealth is not here, except in the person of its legal representatives.

MR LINDON:   Yes.

HIS HONOUR:   But what is the point on which you wish to call Mr Hallowell?  I just do not understand how he can be of help except that he is the instructing solicitor of the Solicitor-General and any questions of him would appear to intrude into the privilege which belongs to the client’s communications with its lawyers.

MR LINDON:   Sir, I will not repeat the point but as long as you can see I am making a distinction between communication of a client with his lawyers - a well-settled point - and the identification of the client. 

HIS HONOUR:   That sounds awfully like intruding into the communications between the officers of the Commonwealth who have actually been giving instructions on behalf of the Commonwealth and the Commonwealth’s legal advisers and that is something which belongs - that would appear to me to be a communication that belongs to the confidentiality of the Commonwealth.

MR LINDON:   Can I just test that proposition in this way?  One says, “Who is the Commonwealth of Australia, who is the defendant?”  One turns first of all to the Constitution Act 1901.  That describes in some detail the entity called the Commonwealth of Australia.  It describes the Commonwealth of Australia as being the legislature, the executive and the judiciary.  I think that is fair to say.  So, in one sense the Commonwealth includes this Court, sir. 

Putting aside the judicial power of the Commonwealth, the executive is identified in the Constitution and so is the legislature. The legislature, in my view, in the material that I put to you about the Senate inquiry and the CBT is not giving these instructions to the Solicitor-General. I doubt, in fact, if the executive is giving these instructions to the Solicitor, given the Canberra Commission on the Elimination of Nuclear Weapons and our stated position in the United Nations General Assembly and the ICJ. It would seem to either be that the Commonwealth is estopped or that the Court will not hear the Commonwealth from giving these instructions, that there is a ‑ ‑ ‑

HIS HONOUR:   This is simply an indirect way of asking Mr Hallowell be called in or to challeng the retainer of the Solicitor-General, is that correct?

MR LINDON:   We can go round it, sir, it is a question of how you characterise the legal issue.  I mean, I characterise it differently to you.

HIS HONOUR:   Dr Griffith, on the last occasion, albeit in different proceedings but in connected proceedings, made it plain that he asserted that he had instructions.

MR LINDON:   From the Attorney-General.

HIS HONOUR:   It would appear to me that you have to show something much more substantial than anything you have shown to me to cast doubt on that assertion which was made in answer to a question from the Court.  Therefore, without more, I would not allow you to intrude into the communications between the Commonwealth and its legal representatives.  You simply do not get to first base in challenging his retainer or requiring Mr Hallowell come forward to cast doubt on that.  To allow him to come forward and to allow you to question him would be to permit you to intrude into the communications between the Commonwealth and its legal advisers which the law does not permit, even in the case of the Commonwealth.

MR LINDON:   Thank you, sir, I will not pursue this except to say that it is hard to think, given your Honour’s indication, of what facts and circumstances would cause the Court to seek some clarification as to which parts of the Commonwealth are given instructions.  I mean, would it be, for example, that if Australia declared war on Indonesia tomorrow and then came into court in response to a writ from me saying that it is a breach of certain municipal laws - could they come into court and not be challenged as to who exactly the Commonwealth was that had given these instructions?

HIS HONOUR:   Such an unlikely case would have to be dealt with on its own merits at the time.  Just dealing with this case at the moment, the question of whether Dr Griffith had instructions was raised by you on the last occasion.  He asserted he had. 

MR LINDON:   Right, and I wish to challenge it.

HIS HONOUR:   I am content to accept his assertion.  You have not provided any basis that cast doubt on it and I will not allow you to call Mr Hallowell to try to put a doubt in my mind which does not presently exist because there is no other proper foundation on which I should embark upon that course.  Again, you have to test it by the proposition of what happens if this becomes a common occurrence.  Parties can spend at least half an hour in a court’s day challenging the retainer of their opponent and putting their opponent to formal proof of their retainer.  Courts would simply be wasting their time in 99 per cent of cases and for the one per cent of case where they are not, it is incumbent on the party that makes the challenge to provide some basis on which the challenge should be explored by a court.  You have not done that.

MR LINDON:   Thank you, sir.  Perhaps on that note and time I should sit down.  I take your Honour to be almost sort of putting a floodgates one-step fifty argument which - - -

HIS HONOUR:   Floods and floodgates have never particularly troubled me.

MR LINDON:   Exactly.  That is why I comment.

HIS HONOUR:   And that is not the basis, but you do have to test propositions by what happens if they become common.  It may be that you then say, “Notwithstanding the fact that it will become common, that the result is inconvenient, that you just have to apply the result”, but it is a proper course of the mind to test the proposition by its consequences.

MR LINDON:   I have heard your Honour’s - Your Honour has indicated that I have put nothing before you.  Clearly, I feel there are matters and your Honour disagrees.  We leave it there.

HIS HONOUR:   Mr Lindon, on the last occasion when the matter was adjourned on the previous application, the application of the Commonwealth, you were given the opportunity to put forward written submissions within a limited period.

MR LINDON:   Yes.

HIS HONOUR:   Do you have any additional written submissions that you wish to hand up today so that they can be considered by me in disposing of these two matters?

MR LINDON:   No, sir.

HIS HONOUR:   Have you said everything that you wish to say in support of your position, both on the Commonwealth’s application and on your summons?

MR LINDON:   All but one, sir:  I rely on the Commentary on the Laws of Australia in the CCH High Court Practice in relation to matters that have been discussed.  I must say in regard to your Honour’s ruling, before I sit down, in relation to evidence, I am troubled by it whilst not contesting it any further but it does seem to me that there is a very odd situation - just speaking as a citizen, not as a lawyer or anything else like that - that where Australia’s official representatives can say in quite simple terms that the use or threat of use of nuclear weapons is per se contrary to international law, and I am then not permitted to put that very person in the witness-box back in an Australian court of law, as your Honour has pointed out, not a political forum, to put matters to that witness which are relevant to these issues, it does, to my mind, make it extremely difficult to see how citizens can be said to actually have the enjoyment and exercise of their right to take the government to court. 

I comment that it seems to be, as I have said before, on any matters to do with nuclear weapons and the relationship between the United States military forces in Australia and the Australian Government, it is impossible to bring it into a court of law.  It is hard enough to put it in a political forum, sir, but to bring it into a court of law there are difficulties which, in my submission, future observers and future generations will be mystified as to the logical or policy basis thereof.

HIS HONOUR:   I think it should only be said in response to that last comment that it may be that the Commonwealth’s case is that what was said by the Solicitor-General to the International Court of Justice was arguably relevant in the event that the International Court of Justice took a course, contrary to the primary submission of the Commonwealth, to be exercised by that court of its jurisdiction but that put to this Court as being the proposition, that it is not relevant to the exercise of this Court’s jurisdiction on the statement of claim which you have filed, that for that reason it was relevant there but is not relevant here.

MR LINDON:   But it is noteworthy that the Commonwealth has conducted its case in the ICJ differently to here.  There it said no jurisdiction for various reasons but they are illegal, and the government was at great pains to point out that it made a decisive change in their policy.  They come back a few months later into this Court and they do not run a two‑pronged case, they do not file a defence saying, “We admit the facts and they probably are against municipal law but the Court cannot grant this relief and there is no cause of action”.  Now, that would, in my view, be the appropriate way for a model litigant, mindful of the fact that the Commonwealth of Australia is, in fact, ultimately in the hands of its citizens and is responsible to its citizens, placing importance on participatory institutional processes.  It seems to me very surprising and a matter for comment that it has been run that way and that is, in my view, a further argument for why the Court ought not to dismiss the matter but to allow it to run as I have indicated in paragraph 2 of my summons.  Thank you, sir.

HIS HONOUR:   Now, Dr Griffith, I do not need to hear you on anything relevant to the specific orders sought in the summons that is before me today.  On the substantive application which is the matter that was part‑heard, looking in particular at document 12.1 - I do not think you have it, or do you have that?

MR GRIFFITH:   I think I have 12.1.

HIS HONOUR:    - - - in exhibit LL 2, and appreciating that the Court is not now examining what seems to be a proposed new statement of claim directed to various officers of the United States, I suppose a point would be reached if it was asserted that particular persons in Australia, whether United States personnel or Australian personnel, were engaged in activity which was contrary to the various Acts which are mentioned there, would have to be answerable to the rule of law in this Court, subject to establishing the jurisdiction of the Court over the person, to respond to the suggestion in a very specific way that they were in breach of the federal legislation.  Do you agree with that?

MR GRIFFITH:   Your Honour, one would assume if there was Australian legislation being breached it would be an ordinary matter for the criminal law.

HIS HONOUR:   It would be - - -?

MR GRIFFITH:   An ordinary matter for the criminal law if there was - it is suggested, your Honour, in this exhibit that there has been breaches of a section of an Australian Act which gives rise to an offence.  Well, your Honour, the ordinary method of enforcement is to take proceedings for breach of whatever provisions are alleged to have been breached.

HIS HONOUR:   Yes.  I am trying to get into the mind of Justice Gummow when he permitted the proceedings to go ahead.  It appears that his Honour was contemplating that an application by way of statement of claim with some degree of specificity would be brought to the Court.  As it happens, the statement of claim that has been filed by Mr Lindon is in the most broad and general terms, apparently because it was parallelling the relief that was sought in the International Court of Justice. 

But one principle which governs courts in dealing with strike-out applications is that they endeavour to deal with the substance of the application and where a person is unrepresented, if there appears to be any other basis within the ambit of the claim, that a claim could be brought, the Court will ordinarily allow the person to reframe their pleading.  Now, the question is whether that course would be proper in this case.

MR GRIFFITH:   Your Honour, we would say it is certainly not.  If it be assumed that the allegation is that there has, as one sees in paragraph 4 in the first page of that exhibit, been a breach of a section of a Commonwealth Act - two sections - which is an offence punishable up to 8 years imprisonment, we would say that that matter would be one which would be pursued in the ordinary way pursuant to the criminal law, not by way of reconstitution of the statement of claim in this action or by a separate statement of claim in the High Court.  Your Honour, were there such a pleading, it immediately would be subject to the same application which has been made here.  But our submission is, your Honour, that this - - -

HIS HONOUR:   You say that is an entirely different subject matter.

MR GRIFFITH:   An entirely different claim, your Honour.  This would be , as it were, using a writ as an ambulatory basis for new proceedings.  The course which would be open, your Honour, would be to take proceedings in respect of that offence in a court of appropriate jurisdiction and determine the matter there.  On the face of things, it would not be a matter of relevance for any writ in the High Court and certainly not this one, which does not adumbrate at all those issues in the present form of either the prayer for relief, which is what we directed to primarily in our summons, or in the supporting statement of claim.  So, in effect, it would be giving - - -

HIS HONOUR:   I notice that the provision of the Nuclear Non‑Proliferation (Safeguards) Act is said to be a criminal offence and I imagine that you would have the same submission in respect of that.

MR GRIFFITH:   Yes.

HIS HONOUR:   And the South Pacific Nuclear Free Zone Treaty Act refers to an offence “punishable by imprisonment of 20 years and a fine of $500,000”.  You would make the same submission in relation to that?

MR GRIFFITH:   We would, your Honour.

HIS HONOUR:   So, essentially, your assertion is that by reason of the generality of the matters raised in the statement of claim and the ostensible purpose being to secure from this Court relief of the kind that has been sought in the International Court of Justice, that being inappropriate and Mr Lindon being a person without standing to seek it and any relevant particular offences being matters which should proceed in their own way

and being outside and different from the relief that he has presently sought on his statement of claim, that he should not be permitted to reframe it?

MR GRIFFITH:   The only extra problem we make, your Honour:  even to seek to argue that, it would be necessary for Mr Lindon to join these named parties in the action and they are not parties to this action.  So, on the face of things there would seem to be no relevant connection which could be maintained but that is in addition to your Honour’s summary.

HIS HONOUR:   Yes.  Is there anything else that you wish to say?

MR GRIFFITH:   No, your Honour.

MR LINDON:   Just one matter.  Does your Honour understand that Justice Gummow had this statement of claim before him and did peruse it?

HIS HONOUR:   I do not know that he did that.

MR LINDON:   Yes, he did, sir.  So that may well support my friend’s case, but I thought you should know that, that he in fact read the writ and read the statement of claim. 

HIS HONOUR:   But what do you say in relation to the Solicitor‑General’s statement:  different parties, different course of action, different statutory provisions, different specificity and, in any case, a fresh statement of claim foreshadowed which should take its own course according to your rights in respect of that and should not be allowed to confuse or divert attention from the statement of claim which you have actually filed in these proceedings, which is the one that is the subject of the Commonwealth’s application and of your summons?

MR LINDON:   Clearly I say the action should be left alive and I should be given leave, if it can be done, to reframe and come back.

HIS HONOUR:   Ordinarily one would do that, but the point that is being made is that that is an entirely different application.  It is not the same application and that that is demonstrated by the very fact that you have foreshadowed a different, separate application involving different and separate parties.

MR LINDON:   But, sir, I did not put it on the basis I was foreshadowing; I put it on the basis that this is the detailed kind of legal argument that can be made; these are the kind of detailed submissions that can be made in relation to the law and the facts in other matters, therefore it is not

hypothetical and a declaration in this case would have relevance to other matters.  It has not been put on that basis.  And I do not think your Honour should be looking at comparing these two matters in that way.

HIS HONOUR:   It is not comparing them; it is just being fair to you to ensure that you are not foreclosed out of the Court if, in fact, by a repleading, you could be permitted to rephrase your claim in a way with higher specificity and greater particularity, that would bring you within, if you could show standing, the laws relating to specificity of relief as distinct from generality of assertions.

MR LINDON:   In relation to that, whether it is a matter for the criminal law, I make two points:  the Commonwealth has notoriously not prosecuted nuclearists, it has only prosecuted anti-nuclear protesters.  There has definitely been a failure of law enforcement and I think that it is possible - that is the point of this action in a way.  It is a civil action to get the Commonwealth to do its job.  Now, that is a different action from what is envisaged in the No 12.1.  I think it is always open to citizens to bring civil or quasi-administrative action to this Court to get the Commonwealth to fulfil its responsibilities under legislation.

MR GRIFFITH:   Your Honour, can I make one supplementary submission on that matter or information that the plaintiff gave your Honour.  If it is the case that leave were granted on this writ and this statement of claim, that would seem to put the issue of matters raised in exhibit 12.1 out of consideration as a relevant matter and, indeed, that is confirmed when one sees the next page, the draft writ, which is attached which ‑ ‑ ‑

HIS HONOUR:   I appreciate that but it is not uncommon, particularly where a person is a litigant in person, though of course this is not an ordinary litigant in person, this is a person with legal qualification, but in such a case a court will often, instead of dismissing the process, allow the person to replead.  And if there were some basis on which, by repleading a claim of particularity which that person was entitled to bring, could be brought before the court, courts quite regularly permit that to be done.  In part they do it in order to avoid imposing on the litigant the burden of having to pay two filing fees, which are not insubstantial.  But the point that you make is that that is a different claim and that that is shown most clearly by the fact that there is a statement of claim in the waiting and that that brings up, whether it be good or bad, the different and separate claim and that that will just have to take its own course.

MR GRIFFITH:   We do understand the plaintiff’s submission just made as being a statement that he does not intend to run that claim within this writ, but that is a separate claim which he uses as a reference point, as he indicated.

HIS HONOUR:   That is clear enough from the draft statement of claim which is filed.

Is there anything else that you wish to say, either on the summons or on the part-heard application, that is not in the oral submissions that you have made on the last occasion and the written submissions you handed up today.

MR GRIFFITH:   We did have written submissions too on the last occasion.

HIS HONOUR:   Yes, I remember that.

MR GRIFFITH:   In addition to that, no, your Honour.

HIS HONOUR:   Is there anything you would like to say to assist the Court in the provision of its reasons relating to the application which has been rejected to call you forward as a witness, in addition to the matters which I put forward to Mr Lenon?

MR GRIFFITH:   No, your Honour.  We would say the only relevant matter is the terms of the submission which are made and they speak for themselves.  The Court has them.  Our submission is that none of the other bases can be relevant; indeed it is self-evident that on to aspects of what authority that I may have as a witness in this Court, your Honour, that that self-evidently could not be a relevant authority, in our submission.

HIS HONOUR:   Very well.  Thank you very much.  Does anything arise out of that, Mr Lindon?

MR LINDON:   No, sir, just the question of costs.  If your Honour goes one way or the other, I would just direct your Honour’s attention to the Law Reform Commission’s report on cost shifting, Who Pays for Litigation, Report No 75, on which the notion of costs orders at various stages of proceedings if it is deemed to be in the public interest.

HIS HONOUR:   Do you ask for costs, Mr Solicitor?

HIS HONOUR:   No, I am not seeking ‑ ‑ ‑

HIS HONOUR:   In the event that the application fails?

MR GRIFFITH:   Your Honour, one of the exhibits shows there has been correspondence and that, indeed, was the correspondence that Mr Hallowell was observed in, about costs ordered against the plaintiff to date and, your Honour, I suppose my standing instructions are to ask for costs, but in the circumstances I do not.

HIS HONOUR:   Very well.  Thank you.  I will simply reserve my decision on the summons, though I foreshadowed in respect of a number of the orders sought the outcome that I intend.  As to the previous application which was part-heard from Canberra, that stands for judgment as well and I will endeavour to provide orders and give reasons as quickly as I can.

I will ask the Court associate to have photocopied the exhibits that have been handed up today.  The other exhibits, I think, are still in Canberra and they will be copied if necessary and sent to the Solicitor‑General’s Office.

MR GRIFFITH:   We are happy to get them all in due course, your Honour, rather than putting your associate under pressure to do them now.

HIS HONOUR:   Very well.  They can be posted to you.  You have no objection to that course, Mr Lindon?

MR LINDON:   No, sir.

HIS HONOUR:   I think there was one document which was to be identified in discussion between you and Dr Griffith.  If you identify that now, they can be photocopied, taken out, and the original document returned to you and the copy sent off to the Solicitor‑General.

MR LINDON:   I thank the Court for that courtesy in copying documents.  Thank you.

HIS HONOUR:   Court will now adjourn.

AT 11.23 AM THE MATTER WAS ADJOURNED