Louis & Ors v Commonwealth of Australia

[1989] HCATrans 42

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl of 1989

B e t w e e n -

ROSALINA MELENA LOUIS

GRAHAM JAMES LOUIS

FERDINAND GRAHAM LOUIS I by

his next friends ROSALINA MELENA

LOUIS and GRAHAM JAMES LOUIS

RACHAEL ROSE LOUIS by her next

friends ROSALINA MELENA LOUIS

and GRAHAM JAMES LOUIS

MURRAY DANIEL LOUIS by his

next friends ROSALINA MELENA

LOUIS and GRAHAM JAMES LOUIS

Applicants

and

COMMONWEALTH OF AUSTRALIA

First-named Respondent

QANTAS AIRWAYS STATUTORY AUTHORITY

Second-named Respondent

Louis(6)

Application for waiver of fees

C3Tl/1/RB 1 2/3/89

Registry C2 of 1989

B e t w e e n -

ROSALINA MELENA LOUIS

GRAHAM JAMES LOUIS

FERDINAND GRAHAM LOUIS I by

his next friends ROSALINA MELENA

LOUIS and GRAHAM JAMES LOUIS RACHEL ROSE LOUIS by her next friends ROSALINA MELENA LOUIS

and GRAHAM JAMES LOUIS

MURRAY DANIEL LOUIS by his

next friends ROSALINA MELENA

LOUIS and GRAHAM JAMES LOUIS

Applicants

and

COMMONWEALTH OF AUSTRALIA

PRIME MINISTER R.J. HAWKE

DEPUTY PRIME MINISTER

MINISTER FOR FOREIGN AFFAIRS
MINISTER FOR JUSTICE

MINISTER FOR IMMIGRATION

First-named Respondents

QANTAS AIRWAYS STATUTORY AUTHORITY

THE CHAIRMAN OF QANTAS

MINIWTER FOR AVIATION

Second-named Respondents

Application for waiver of fees

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MARCH 1989, AT 9.31 AM

Copyright in the High Court of Australia

C3Tl/2/RB 2 2/3/89

Louis(6)	(Continued on page 2A)
HIS HONOUR:	You are Mr Louis?
MR G.J. LOUIS:	Graham Louis, yes.
HIS HONOUR:	Yes, Mr Louis.
MR LOUIS:	Your Honour: has read the summons, of course?
HIS HONOUR:	I have, yes, Mr Louis.

MR LOUIS:	Has Your Honour got anything to say about it?	Do
you take any - - -

HIS HONOUR: Well, Mr Louis, there are a number of problems,

it seems to me. One is: what is the ground of the

application? What do you rely on?

MR LOUIS:	Well, Your Honour, my family and I were wrongfully
arrested in Hong Kong in 1982 and we were forced
into the country illegally and we have never been
able to leave the country and the position is worse
now than what it was before the trial, which was
the victim of an undue delay for five and a half years.
So the fact is that we are in the country, brought
about by wrongful arrest, false imprisonment, in breach of migration laws and and we should not be
required to pay a filing fee or costs to complain against the Commonwealth of Australia and the
QANTAS Airways Air Statute Authority. I think
Your Honour would understand that.
HIS HONOUR:	Yes, well, I understand the way you put it, but I must say I feel considerable difficulty about this
Court's power to direct that no fee be taken on the
ground of impecuniosity. It seems to me that is a
matter for the Attorney-General under the rules, but this Court does hav~ - or a Justice of the Court
does have power to direct that no fee be taken for a special reason. But what is special about your
case? What is the special reason why the fee should
be waived in your case as opposed to other people's
cases?  (Continued on page 3)

C3Tl/l/VH	2A	2/3/89
Louis(6)

MR LOUIS:  Because there is a very special reason,

Your Hon our, one , we a re in th i s c o u n t r y b rough t

about by wrongful arrest and false imprisonment,

so we were literally illegally forced into this

jurisdiction, so that in itself is a very special

reason. 1 would submit, Your Honour, that that

is a very special reason.

HlS HONOUR:  But that would mean that any person who was

wrongfully imprisoned in this country would be

entitled to have the fees waived.

MR LOUlS:	I beg your pardon?
HlS HONOUR:	That would mean that any person who was brought

into this country and falsely imprisoned here by the

Commonwealth authorities would be entitled to have

his fee waived in any action he took against the

Commonwealth.

MR LOUIS:	I would submit that that would be absolutely true.
HIS HONOUR:	Yes. Well, the other difficulty, it seems to

me, that you have in your way is whether your

statement of claim and your order for mandamus

disclose a cause of action. As you are no doubt

aware from what Justice Deane said in the earlier

case and what Justice Brennan said in another

earlier case brought by you, no order will be made

under rule 12 if the action or the proposed action

has no reasonable prospects of success. How can

I be satisfied that these proceedings are not an

abuse of process?

MR LOUIS:  Yes, well, as Your Honour would know the wrongful

arrest and the false imprisonment of my family

and 1 into the country have been established, the

basis, the wrongful arrest and the false imprisonment.

HIS HONOUR:  It has been decided by Mr Justice Kelly

and that binds you and the Commonwealth and Qantas

for ever that you were wrongfully and falsely

imprisoned in Hong Kong but Mr Justice Kelly held

that your claims against the Commonwealth of Australia

failed.

MR LOUIS:	Yes.
HIS HONOUR:	Well, that means that you can never litigate

again against the Commonwealth the assertion that you

have been falsely imprisoned in Australia by the

Commonwealth.

MR LOUIS:	Our argument is that when QANTAS Airways were found guilty the Commonwealth in the least were
found indirectly guilty because they own the airline
and the airline is a statutory authority, so the

C3T2 /1 /HS	3	2/3/89
Louis(6)

Commonwealth as a body co-operative must have been

responsible for the same tort since their statutory

authority were found guilty for it, but we intend

to appeal the	Commonwealth's direct involvement
in the same.

HIS HONOUR:  Yes, but it has been judicially determined that

the Commonwealth was not responsible for any false
imprisonment or any false arrest of you in relation

to what occurred in Hong Kong and subsequently.

MR LOUIS:  Well, the QANTAS Airways were found to have

wrongfully arrested my family and I at different times, my Philippine family first, then 1 as a non-Australian

a period later.

HIS HONOUR:  Well, that is another matter. You see,

Mr Justice Kelly held that you were still an

Australian citizen and that you could not renounce

your Australian citizenship.

MR LOUIS:  Well, there is no competent body can force me

to give allegiance to the country, in this particular

country.

HIS HONOUR:  Whether that is so, or not, the fact is that

the judge determined that you were not a stateless

person but that you were an Australian citizen.

MR LOUIS:  I think he determined - he was not satisfied

with the statelessness, however the treaty that

made me stateless, without prejudice to the fact

that I embrace iliePhilippine nationality and declared
that and without prejudice to the argument that I was

a British national, that really was not on trial. What was on trial was the wrongful arrest and the

false imprisonment.

HIS HONOUR:  Let me read to you what Mr Justice Kelly said.

He said:

(Continued on page 5)

C3T2/2/HS	4	2/3/89
Louis(6)

HIS HONOUR (continuing):

The plaintiffs were returned to Australia.

without further incident. They allege

that their forced deportation to Australia

has meant that they are prisoners in

Australia and that the imprisonment of

which they complain has continued from the

moment they were placed on board the

second defendant's aircraft -

that was QANTAS' aircraft -

I am unable to accept that claim. I do

accept that for a time after their return to Australia, financial constraints would

have prevented the plaintiffs from leaving

the country, however, there is no evidence
to suggest they could not have departed
the country in due course to a destination

of their choice.

And then he goes on to say:

In any event, it seems to me to be impossible
to say that persons who are at perfect liberty
to move around Australia, as I am satisfied
the plaintiffs were, are suffering a state

of imprisonment. Their stay in Australia

might be against their wills. Once they were

deported from Hong Kong, there were only two

countries to which it appears they might have

gone. Faced with what I have described as

"Robson's choice", the first plaintiff elected

to return to Australia to be with her husband

who had, it would appear, no choice once he was

deported from Hong Kong but to return to

Australia. I therefore reject the claim

that the plaintiffs are entitled to damages

for continuing imprisonment in Australia

after their return.	I also reject the claim
that the defendants were motivated by spite
and malice. I can see no evidence but that
they acted with good intent towards the
plaintiffs.

Those matters have been decided by the judge. You can

challenge them on an appeal against that judgment
but unless an appeal court sets those findings aside,

they are binding on you and they are binding on the

Connnonwealth, for that matter, and QANTAS in any

subsequent litigation between you.

MR LOUIS: Your Honour, in what you have just said, if I can

just pass several connnents. First of all,

His Honour Justice Kelly, who was very reasonable

about his approach to the handling of the trial -

C3T3/l/BR	5	2/3/89
Louis(6)

HIS HONOUR:	Yes, he accepted you as a witness of truth.
MR LOUIS:	Thank you, that is good.
HIS HONOUR:	And you were awarded damages yourself and your wife was awarded damages and your children were
awarded damages.
MR LOUIS:	Our true grievance is not against His Honour

Justice Kelly, it is against the Connnonwealth for

the way they conducted their defence and the way they

handled the matter over the many years. But

His Honour Justice Kelly did not specify when we

could leave. In other words, His Honour thought that

in due course we could have left. But we could give

evidence to say that that was not possible because

of the fact that we did not receive our pecuniary

interests and our assets and recoverable claims in

Hong Kong when being falsely imprisoned into the

country, we were not in a financial position to

leave, that is true. But the constraint became

worse as the period of time increased.

HIS HONOUR:  I can understand that you may be dissatisfied

or you may claim that you did not have an opportunity

to call certain evidence before Mr Justice Kelly,

and I understand that is part of your complaint from

the documents I have read.

MR LOUIS:  Yes.

HIS HONOUR: But, Mr Louis, what you have to understand is

that the policy of the law is to prevent people from

litigating issues over and over again.	You get one
chance to do it.	You have got to call all your

evidence during that oner chance and when a decision

is made it binds both parties for good or bad unless

the decision is set aside on appeal. Mr Justice Wilson,

you will remember, struck out a statement of claim
you brought in another action against the Connnonwealth

on the ground that he thought much of what you wanted

to litigate had already been decided before (Continued on page 7)

Mr Justice Kelly.

C3T3/2/BR	6	2/3/89
Louis(6)

MR LOUIS:  Of course, the-fact is thatal though His Honour

Justice Kelly said that we were at liberty to move around certain parts of the country,since this false

imprisonment was from another jurisdiction, it is a

false imprisonment within the jurisdiction, we are

not free to leave the country. So we say it was a

continuing false imprisonment.

HIS HONOUR:  Mr Justice Kelly held that there was no false

imprisonment in Australia, not by Qantas and not

by the Commonwealth. What you got damages for,

to use His Honour's words, was for what happened in

Hong Kong.

MP. LOUIS:	The compensatory?
HIS HONOUR:	Yes.
MR LOUIS:	There is, in law, a right to recover for. aggravated

damages, exemplary damages and the mental and nervous

shock.

HIS HONOUR:  There is indeed, but they should have all been

recovered in that action.

MR LOUIS:  The statement of claim before the Court now is

that there is a distinction. The false imprisonment

into the country happened in 1982 and the statement

of claim in paragraph 3, adjoining this summons now,

is complaining that:

On 24 March 1982 the plaintiffs petitioned

and complained to the defendants through their

agents and servants, Prime Minister R.J. Hawke,

the chairman of Qantas and others about illegally
being forced from Hong Kong to Australia. It

was known to the defendants the plaintiffs had

no valid entry permits and were in Australia

against their will. The defendants failed to

listen, attend and remedy the said complaints

which were continually made orally and in writing.	The defendants are without care, gross negligent	and are responsible for damages and transporting
plaintiffs to Hong Kong -

with the deletion of the latter word.

HIS HONOUR:  You see, the problem about that is it does not

disclose a cause of action. There is no legal
duty enforceable by an action for damages against
the Prime Mtnister or any of the other persons

to listen to your complaints.

MR LOUIS:  It would be a gross negligence for failing to

address a family's complaints if they have been

wrongfully arrested and false imprisoned into the

country, in breach of the migration laws.

C3T4/l/MB	7	2/3/89
Louis(6)

HIS HONOUR:  But there is no legal duty which imposed on any

of the people involved which is enforceable by you

in an action for damages if they fail to listen.

I mean, you may be able to complain about that at

the political level but it is not a matter that is

enforceable in a court of law, in an action for

damages.

MR LOUIS:	But I would that thought that the Prime Minister and the government, the Cormnonwealth collectively, have a duty to listen to complaints by a Filipino
family complaining that they have been false imprisoned into the country and that they have no
visas and they refuse to apply for visas in protest of the outrageous forced entry into the country, that the Prime Minister would have a duty.
HIS HONOUR:	Well, Mr Louis, it is something that they may

or may not have - that is to say they may or may

not have a political duty to do it but they certainly

have not got a legal duty which is enforceable in

an action for damages.

MR LOUIS:  But if they have a legal duty according to the

MIGRATION ACT and general law there must be a right

to recover damages for their gross negligence and

failure to attend.

HIS HONOUR:  But that is the question, what is the legal duty

enforceable in an action for damages? There just is

not one.

MR LOUIS: 

Then the Prime Minister also, and the Cormnonwealth,

would have had a complaint, a statement, made by
my wife which is exhibited as, I think, in the

statement of claim A.

HIS HONOUR: 

Yes.

MR LOUIS~ 

That my wife had been visited by the Australian

consulate after we had been separated from each

other and she had been manipulated by the Australian

High Cormnission who made misrepresentations to her,

told her I was in Australia. They got her to

fraudulently sign a number of documents and when
she learned that it was not true, that I was still

in Hong Kong, she cancelled them and made a statement,

which Your Honour has a copy of, dated 13 January 1982,

complaining that she had been threatened, intimidated

and that she would never be reunited with me again

if she did not sign these particular documents in which

she delcared them all invalid.

C3T4/2/MB	8	2/3/89
Louis(6)

MR LOUIS (continuing): And then the incoming cablegram

referred to, marked B, that the Australian High

Commission notified Foreign Affairs that she demanded that, in as many words, that we did

not want to come to Australia and nor could we

be forced to and the Commonwealth and Qantas

disregarded that and thereby kidnapped my wife

and abducted my children and, most certainly,

in breach of the migration laws and, especially,

the entry into the country.

His Honour Justice Kelly only referred to

visas in his judgment but they were subject

to entry and the entry was a false imprisonment

so the Commonwealth were in a position - or

the Prime Minister and the government of the

day, the Hawke Government, were in a position

to know that with all the material before them,
the hundreds of thousands of documents, that
my family had been illegally forced into the

country and I am saying, Your Honour, that the

government do have a legal duty to -

HIS HONOUR:  I know you are asserting that but what I

am putting to you, Mr Louis, is that there just
is not any such duty, there just is not any

legal duty in force or by damages.

MR LOUIS:	Your Honour, if I could just -
HIS HONOUR:	Yes, certainly, you refer me to anything

you want to in support of this argument.

MR LOUIS:  The MIGRATION ACT of 1958 as amended in 1979,

No 117, this refers to people that have been

brought into the country illegally.
Section 36A(7), I think it is:

The master, owner, agent and charterer of an aircraft are, jointly and severally,

for the cost of keeping and maintaining

liable to pay the Commonwealth a fair sum

a person while he is kept in custody in

pursuances of sub-section (1), (2) or (3)
and, if the person has been kept in custody

at a place other than the proclaimed airport,

the cost of transporting the person, and

a custodian of the person, from the airport

to the place of custody and, if the person

is required to be removed from Australia,

from the place of custody to the vessel
or aircraft upon which he is to be so removed.

In this particular case, since we were illegally
forced into the country, the Qantas Airways,
the owner the Commonwealth, would be responsible

as they hold other airlines and masters - - -

C3TS/l/ND	9	2/3/89
Louis(6)

HIS HONOUR:  Yes, but all that section does is that if the

Commonwealth had wanted to make a claim on Qantas it may have had some rights against Qantas but

that does not give you any rights against Qantas

and still less does it give you any rights against

the Commonwealth or against the Prime Minister.

MR LOUIS:  The Prime Minister and the government and the

Minister for Immigration and the Commonwealth body as such are responsible to make sure that the country is run properly and law and order

and that people that had got complaints that

they have been illegally forced into the country

and there have been breaches of law, civil and

criminal, the Prime Minister and the government

and the people that run the country are responsible.

That is our submission and because they have

failed to do the right thing and, once again.

the International Covenant on Civil and Political

Rights, Australia has not signed the optional prodigal, but article 9 would cover this says that we should have brought before a court without

delay.

Five and a half years was not without delay

and the fact that the Commonwealth now are claiming,

for a start, that we owe them $27,000, we say

that that is unlawful and to the contrary they

should compensate us properly in view of the

delay and the suffering that has been involved

and return us to where we were illegally forced
from and then, from there, we go to where we

would wish to go in due process.

HIS HONOUR:	Where is it you would like to go?
MR LOUIS:	With all respect, Your Honour, I do not want

to bring that ball game into this jurisdiction

but, by law, our domicile is the Philippines.

And by law, all they have to do in Hong Kong

is just put us - all they had to do was just

put us on to an aeroplane with our chattels

and fly us into the Philippines but they did

not do that and there was never any evidence

to suggest to the contrary.

(Continuing on page 11)

C3TS/2/ND	10	2/3/89
Louis(6)

HIS HONOUR:  But your real complaint is, really, against the

Hong Kong authorities, is it not?

MR LOUIS:  Both. We intend to, unfortunately, appeal against

His Honour Justice Kelly's decision, not because of -

the way the Commonwealth conducted their defence, we

were not given proper discovery. We were not allowed

access to certain documents and the intelligence
organizations were involved in this particular
matter and the Commonwealth were directly involved

in the wrongful arrest of my family, first of all.

Then, false imprisoning them into the country and

then doing the same thing to me after a period of

time. So, we are saying that there was a case in

Sydney Harbour to distinguish a continuing false imprisonment where I think it was, a bailiff set

a boat full bore out into the harbour; the people

or the person on board did not know how to stop
the engine; the boat ran adrift and the person was

not prepared to dive into the shark-infested waters.

The court held that it was a continuing false

imprisonment. So, since we were illegally forced

from Hong Kong into this country and we were not

able to take any perilous steps to leave, it must

be a continuing false imprisonment because we were

not able to leave the country. So, it is a false

imprisonment within a jurisdiction.

HIS HONOUR: Well, what would you say if - I do not imagine you had any personal enemies - but supposing some

personal enemy of yours in Hong Kong had kidnapped

you and illegally brought you into the country and

dumped you here on Australia, would you say that,

in that situation, the Commonwealth had a duty to

take you back to Hong Kong?

MR LOUIS: If, for example, we were kidnapped and brought

through the turnstiles, the airport and it was found

that we were kidnapped into Australia, the Commonwealth

would be responsible to, if the person could not be

found, as a third party, to take us out of the country

and, that is, if the person, the villain was not caught.

HIS HONOUR:  I understand that, yes.

MR LOUIS: Right.

HIS HONOUR: Well, yes, you push the Commonwealth's responsibility

to the extreme. It has a responsibility for anybody

who has been brought into this country against his

will.

MR LOUIS:  When you say I push it to the extreme, how -

C3T6/l/SH	11	2/3/89
Louis(6)

HIS HONOUR: Well, I mean, you push the argument as far as

it can logically go.

MR LOUIS:  Well if, hypothetically speaking, a foreign person

or, for that matter, an Australian person, did

kidnap a particular person and kidnap into and

force them into this country illegally and then

disappeared, of course, the Commonwealth would

be responsible because it was their backyard.

HIS HONOUR:	Yes, well, I understand.
MR LOUIS:	But this, of course, is an entirely different

situation.

HIS HONOUR:	Yes, I know.
MR LOUIS:	This was an unlawful exercise, perpetrated by an

international air carrier and by the Commonwealth

Government with the full knowledge and direct involvement of the Commonwealth on political and

other levels, involving their intelligence organisations

and police and when my wife, for example, and children

got to Sydney airport and then to Melbourne airport,

their passports were given back to them with stamps

in them, so even the immigration officers had been

directed what to do and the Commonwealth, knowingly,

allowed people to enter the country as prohibited

non-citizens and fraudulently used their IMMIGRATION

ACT.

HIS HONOUR:  Yes, Mr Louis. Well, I follow the way you put

your case but, now, could I take you to other paragraphs

in the statement of claim. Is there anything further

you want to say about any other paragraphs or are

they covered by what you have already put to me?

MR LOUIS:	Paragraph 4. Your Honour, since we have been in
the country, we pleaded:

On 13 January 1983, the first defendant

unlawfully discriminated against the

plaintiffs by its own admission -

meaning Australian Crown Solicitors at that time.

They said that no member of my family were entitled

to this particular family allowance which would have

followed the handicapped pension -

and actions of its agents and servants and
denied plaintiffs family allowance payments

from the said date till April 1988.

C3T6/2/SH	12	2/3/89
Louis(6)

MR LOUIS (continuing):  Now the Administrative Appeals Tribunal

has not got jurisdiction over this particular matter.

It is a point of law. We are saying that, under

Corrnnonwealth law we were discriminated against by

the Corrnnonwealth's own admission. Then paragraph 5,

there is a particular claim here of conversion without

further particulars. On a date in 1987:

The second defendant unlawfully gave -

that is QANTAS -

unlawfully gave the first defendant $4000

of the plaintiff's money and refuses to

return it to the rightful owner, the

plaintiffs.

HIS HONOUR:  What is the basis of that claim?

MR LOUIS: Right, with further and better particulars, it is

that, after the judgment handed down by His Honour

Mr Justice Kelly, QANTAS Airways,first of all appealed;

they withdrew their appeal and they settled the

matter but, at the same time, I think, they withdrew

their appeal on the Friday. On the Monday the

sheriff delivered garnishee orders and before the

matters was settled in terms of the compensatory

aspect of compensation, we were brought before the

registrar of the supreme court who directed QANTAS

to pay the Corrnnonwealth the sum of money. We are

saying that it was beyond the Corrnnonwealth's power

to receive money out of compensation from Hong Kong
for starters. Secondly, that it was the company -
the Corrnnonwealth, in any event, did not have a right

to recover from a tort that had been found against

a- part of them, meaning their government-owned

airline.

HIS HONOUR:  Yes, I understand.

MR LOUIS:	They own the Connnonwealth, lock, stock and barrel
and it is wrong for a part of the company to cause
an action and then another part of the company have
the right to recover costs caused by a part of them just on the judgment alone without the right of
appeal of the direct involvement of the Corrnnonwealth.
Then, Your Honour,in paragraph 7:

The defendants herein have acted out of spite

and malice.

Now, what, of course, that discloses that the complaints
made for causes of action whicb we believe that we

have disclosed herein. That cause of action there

flows-from that, that:

C3T7/l/VH	13	2/3/89
Louis(6)

The defendants herein have acted out of spite

and malice

because of their failure to do all the things that

we asked them to in (3) and even (5) for that matter,

paragraph (5) where, after their airline was found

guilty they went on a trip to try and get us

economically, physically and mentally, especially
by the court costs. "We tried to beat the Louis

family for five and a half years; QANTAS were found

guilty, now we will get them with court costs."

The malice, the way they handled the whole thing.

But in the statement of claim, Your Honour, as you

know, being a Queens Counsel for some years, you would

know that in a statement of claim it has got to made

as brief as possible and it is very hard to make the

paragraphs much longer and put further and better

particulars in. But the gist of the complaints have

been expressed and then we went on - - -

HIS HONOUR: Well, I understand. There is nothing about the

expression of your claims. I understand the basis

that you are seeking to get at but the difficulty I

have, to be perfectly frank with you, Mr Louis, is

that it seems to me either they do not raise causes

of action in law or, at least, I am not satisfied

that they do, or they cover ground which has already

been covered by Mr Justice Kelly's decision which

you cannot litigate again. But you have said all you

can and nobody could say it better and I understand

what you are putting but the view I take about it,

Mr Louis, is that my hands are tied in respect of

the matter. I am sorry, but that is the view.

But could I take you to the mandamus situation?

That is action C2 of 1989.

(Continued on page 15)

C3T7/2/VH	14	2/3/89
Louis(6)

MR LOUIS (continuing): Before I forget, Your Honour, I made

an affidavit two days ago. Could I have that

applied to CZ as well, please?

HIS HONOUR:  Yes. They seem basically to require the

production of documents, information and directions.

Well mandamus lies against public officers and

public authorities for breach of public duty. But,

what is the public duty you rely on - the same sort

of public duty that you relied on in relation to the

statement of claim,, is it?

MR LOUIS:	A legal duty, not public duty.
HIS HONOUR:	Yes.

MR LOUIS:  A legal duty. The Prime Minister of Australia will

not produce unless he is ordered to.The discovery

of the documents that we had in the trial which is - there

is a distinction between the two, although they are

related, is the Commonwealth made the discovery under

affidavit and Foreign Affairs discovered departmental

and there was definitely no disclosure by

documents and certain letters that had been received. ministers

ASIO or ASIS and the AFP were allowed to delete

certain things through the Chief Justice of the Supreme

Court.

During the course of the trial the contents of the deletions were not declared. But after the trial

the Commonwealth sought costs in relation to work
they did on communications, correspondence between the

AFP - the Australian Federal Police - ASIO and the

Hong Kong authorities. And this was one of our

original complaints, that there had been unlawful

interference in our life abroad in Hong Kong. So,

what we have sought to achieve in this particular

application for the order nisi for the writ of mandamus

is that the respondent's agent and servant,

Prime Minister R.J. Hawke, produced to the applicants

all material, documents, information, directions made,

advice received by him, communications between the

Prime Minister, his office and his departments and

other ministers, parliamentarians and other agents and servants of the respondent, including ASIO, ASIS, AFP, the governments, QANTAS Airways, relating to the

applicants and all knowledge the Prime Minister has of
the applicants and their complaints, and for the said
production to be made in the form of an affidavit of

discovery without delay. And we have sought for the

same to be - - -

HIS HONOUR:  Yes. I know, in respect of the other people.

Can I ask you this?	Who are the parties to these
mandamus? The Commonwealth and QANTAS.	Do you also

C3T8/l/JH	15	2/3/89
Louis(6)

make the Prime Minister and the deputy Prime Minister

and the other people also parties?

MR LOUIS:	Collectably, yes, Your Honour.
HIS HONOUR:	You seek to make them parties.
MR LOUIS:	Because during the course of years we had a lot of

communication and perpetual complaints to them and

response; in other words they run us around in

circles for many years. They were in carriage of -

these prospective people were -

HIS HONOUR:  Mr Louis, is there anything further you want to

put into the support of this? Frankly, it distresses

me to see you in this situation. I suppose nothing I

will say will alter your view about this matter but

have you got legal advice? Have you sought legal

advice in respect of your various claims?

(Continued on page 17)

C3T8/2/JH	16	2/3/89
Louis(6)

MR LOUIS:  I have got a hot line to heaven, but where do you

think there is something wrong?

HIS HONOUR:  There are legal aid bodies around Australia and

they may or may not advise you that you have got

no causes of action but you seem to me to be

getting yourself in a situation where you are taking

up your own time pursuing actions. This is the

fourth action which has come before this Court. The

previous three have been struck out. The Commonwealth

is pursuing you for costs in respect of the application

in front of Justice Wilson, I take it. It is very

distressing. You will surely have to give serious

an end and forgetting about it, Mr Louis, I am	consideration to just bringing this whole matter to
afraid.

MR LOUIS: If i could address that latter question next. If I

could just refer to the legal aid. In the first

instance we came into this Court before the former

Chief Justice and he adjourned the matter in 1983 so

we could get legal aid. Now, legal aid paid a

particular legal firm to handle the matter, first of
all, then to instruct a barrister to give a legal
opinion. Now, the dealings with the lawyers that
we have had, they have not been able to come to grips

with this particular matter. It is not the general

line of practise. It is not the ordinary piece of

litigation that they come across every day.

HIS HONOUR:  Did you have representation before Mr Justice Kelly?

Did you appear on your own in front of Justice Kelly

or did you have a lawyer appearing for you?

MR LOUIS:	I represented my family and God is my solicitor.
HIS HONOUR:	Yes, well, you did very well. You succeeded.

MR LOUIS: In that respect, we did.

HIS HONOUR:  You are obviously a very determined man and you

will no doubt take your own course but - - -

MR LOUIS:  I am sorry, Your Honour. Hy family are in this

country brought about by false imprisonment, wrongful

arrest. We are now being ordered to pay - or being

pursued - the sum of $27, 000-odd which are, we say,

unlawful and oppressive and it still misses the point

that we were illegally forced into the country. We

have not received our transportation out of the country

and since we have been here we have been treated worse

than the Aboriginals have. So, in view of all that,

we are forced into the country, stuck in the country,

and tangled up in the legal machine as well, and

being pursued for court costs.

C3T9/l/BR	17	2/3/89
Louis(6)

HIS HONOUR: 

I appreciate that, but one thing you will have to

bear in mind - and I am sure your studies and reading
in the law will have already informed of this - is
that the law does not always provide a remedy for

every injustice.  Some injustices have got to be

cured at the political level and your proper remedies,

assuming that you have got valid complaints in a moral
sense, may be at the political level rather than at a

legal level.  I do not want to say anything further

about it but I have to rule on this application as I

see the law, but is there anything further that you

want to say in support of this application?

MR LOUIS: 

If there is not a remedy as you, Your Honour., have

said to all injustices then that is a denial of

natural justice and then that is not natural. It is

wrong. So therefore there must be a relief for it.

HIS HONOUR: Unfortunately, some people think that the common

lawyers rejected the doctrines of natural law and natural justice a long time ago. I am afraid the

situation is that the law does not always provide

remedies for injustices.

MR LOUIS:  Then we can fall back on the human rights declaration

and the law about domicile and the international

treaties that explicitly point out our legal rights.

HIS HONOUR:  Is there anything further you want to put in

support of this application?

(Continued on page 19)

C3T9/2/BR	18	2/3/89
Louis(6)

MR LOUIS:  When the former Chief Justice adjourned the matter

in 1983 even a barrister then tried to entrap us.

I will not mention his name again.

HIS HONOUR:  Well, it is in the documents. I noticed that.

I saw that.

MR LOUIS:  Yes, and so really the way legal aid treated us

and the delay they caused us and the fact is,

Your Honour, that is very hard to go to legal aid

and get them to finance an action against the

political group and the parliament and the

intelligence organizations and the establishment.

They are just not prepared to finance those sort of

things too easy and a lot of our complaints have been

scandalous and embarrassing, but then nPvertheless

proper; in other words, we had a ri8ht to express

our complaints.

HIS HONOUR:  Well, you have got the judgment of a

Supreme Court of the Australian Capital Territory

judge who says that you were wrongfully imprisoned

happened on the adjournment that Sir Ha~ry Gibbs gave you.

by QANTAS, so you have that decision in your favour.

MR LOUIS:	Legal aid paid the legal firm and the legal firm paid a barrister - - -
HIS HONOUR:	And it was unsatisfactory, apparently, was it?
MR LOUIS:	- - - and he tried to get us to swear false

affidavits to an action against John Singleton and

related to this particular action now. So during

our dealings with the legal profession we have found
them very reluctant to be honest and do the right

thing but we succeeded, as His Honour said, in

establishing the wrongful arrest, false imprisonment,

but it still leaves us in an unsatisfactory position

where we are still here and we did not receive the
things that I have mentioned.	So, if I could put it

on the Court record before you give it the

coup de grace - - -

HIS HONOUR:	tes.
MR LOUIS:	- - - on a without prejudice basis my wife and

I will set the appeal into train and will petition

the Prime Minister, on a without prejudice basis,

and point out to him the immorality of it, the fact

that we have not been able to recover properly

and that we are still in this awkward position and

we will see if he will have another look at it,

and not take into account the harsh words and the

infighting and the dirty stuff that has taken

place over the years. We will give him the opportunity

to have another look at it in view of the judgment

C3TlO/l/HS	19	2/3/89
Louis(6)

to have another look at it in view of the

judgment by His Honour Justice Kelly, and the

whole lot together.

HIS HONOUR:  Yes. Well that sounds a very sensible course,

if I might say so, Mr Louis.

MR LOUIS:	Thank you, Your Honour.
MRS LOUIS:	Your Honour, may I just say something too?
HIS HONOUR:	Yes.  You are a party. You are entitled to.
MR LOUIS:	It is my wife Rosalina.
HIS HONOUR:	Yes.
MRS LOUIS:	I just want to say some simple things,

Your Honour. Actually when we were on trial about 1986 with Justice Kelly, the only thing that was on

trial actually was the wrongful arrest and false

imprisonment. We were not allowed to - they struck

out the rest of it, so the only thing that was on

trial actually was wrongful arrest and false

imprisonment and I think, as I can recall it,

Justice Kelly said that the charges that we are

supposed to - the complaints that we made, the

departments like Prime Ministers and Department of

Foreign Affairs and all that can just follow that

later on, which I suppose we are doing now, and also

the wrongful arrest and false imprisonment actually

was from Hong Kong into Australia.

What we are claiming actually is because of the

Commonwealth's interference with our life and from

Hong Kong was the cause of it. I mean,

Justice Kelly did find them guilty of wrongful

arrest and false imprisonment, but they were

involved in, say, kidnapping or abduction or a tort.

I can also recall that he mentioned about something

that there was a tort between two defendants but

because of the wrongful arrest and false imprisonment

was only on trial they could not put it on.

(Continued on page 21)

C3Tl0/2/HS	20	LOUIS	2/3/89
Louis(6)

MRS LOUIS (continuing): Also I do not know how many statement

of claims we put through to the High Court and only

one actually has been accepted.

HIS HONOUR:	Yes.
MRS LOUIS:	That is one thing. The application that we are

asking now actually is we cannot pay for it; it is

going to cause hardship.

HIS HONOUR:  Well, I understand that, Mrs Louis, however,

the question is whether or not I can be satisfied

that the documents disclose a new good cause of

action and that is what I have got to be satisfied

about. As I said to your husband you may have

remedies at the political level. Eut is there anything

further that you would like to say?

MRS LOUIS:  That is okay, I will leave it to him. Thank you,

Your rr~uour.

HIS HONOUR:	Thank you, Mrs Louis.
MR LOUIS:	Thank you, Your Honour.

(Continued on page 22)

C3Tll/l/MB	21	2/3/89
Louis(6)

HIS HONOUR:  I will give a very short judgment in this matter.

This is an application pursuant to Order 72 rule 12

of the High Court Rules for an order directing that no

fee be taken for the filing of a writ and statement of

claim and for the filing of an application for an order

nisi for a writof mandamus. The plaintiffs in the writ

and statement of claim are Mr and Mrs Louis and their

children. The defendants are the Commonwealth of

Australia and Qantas Airways. In the application for

an order nisi for the issue of a mandamus, the applicants

are Mr and Mrs Louis and their children.	The proposed
Airways, the Chairman of Qantas, the Minister for Aviation, the Prime Minister of Australia, the Deputy Prime	respondents are the Commonwealth of Australia, Qantas the Minister for Justice and the Minister for Irmnigration.

The terms of rule 12 are as follows:

The Court or a Justice may, in a particular

case for special reason, direct -

(a)	that a fee shall not be taken, or that part only shall be taken, or, if taken
that the whole or a part of the fee be remitted; or
(b)	that the payment of the whole or a part of a fee be postponed until such time,

and upon such conditions, if any, as the

Court or a Justice thinks fit.

The construction of this rule was considered by

Justice Deane in RE LOUIS, (1987) 62 ALJR 39 and also

by Justice Brennan in RE LOUIS (No 2), (1988) 62 ALJR 428.

In the first case, Justice Deane said that it was

arguable in the context of O 72, r 12 that "special

reason" was not intended to encompass a case in which

the only grounds adduced for the making of an order

were the lack of means of the applicant. However,

His Honour went on to say that in determining whether

an order under O 72, r 12 should be made it was

necessary to pay regard to the nature of the proposed
proceedings and to the prospects which the applicant

had of success in them.

Tl2 In the second case, Justice Brennan expressed the

view that the requirement of a special reason involved

the concept that the Judge had to have some degree of

satisfaction that the cause of action which was sought

to be litigated was one which had some reasonable

prospect of success and was pleaded in a fashion which

was sufficiently intelligible to identify its

constituent parts.

C3T13/l/PLC	22	2/3/89
Louis(6)

I will not set out the various paragraphs in the

statement of claim and in the application for an order

nisi for mandamus. They have been examined at some

length by Mr Louis in his eloquent argument this morning.

However, I am not satisfied that the statement of

claim and the application for the order nisi, either
in whole or in part, disclose a cause of action.

Further, it seems to me that some of the claims involve

an attempt to relitigate what has already been decided

in an action brought by Mr Louis and Mrs Louis and

their children against Qantas and the Commonwealth in

an action heard by Mr Justice Kelly in the Supreme Court

of the Australian Capital Territory in action 1029 of

1985.

Accordingly, in the circumstances, the only

order I can make is that the application should be

refused. I so order.

AT 10.57 AM THE MATTER WAS ADJOURNED SINE DIE

C3Tl3/2/PLC	23	2/3/89
Louis(6)