Morris - Appn for leave to issue proceeding CHH

[1998] HCATrans 471

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  

Application for leave to issue a proceeding by CHRISTOPHER F.L. MORRIS

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 24 DECEMBER 1998, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   You are Mr Morris, are you?

MR MORRIS:   Yes.

HIS HONOUR:   You are the applicant in these ex parte proceedings to issue the process to the court?

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   I think that you are before me because Hayne J on 25 June directed the Registrar to refuse to issue the proceeding which you had placed before the court without leave of a Justice.

MR MORRIS:   Yes.

HIS HONOUR:   You are now seeking that leave?

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   Yes, very well, well you tell me what you want to say.

MR MORRIS:   Thank you for this opportunity to come before you.  In this matter I’m not legally qualified to argue whether the applicability of the Treaty powers has legal merit and if your Honour has concerns about that issue then I would ask that this matter be adjourned while I seek counsel’s aid.  However, I’m happy to proceed with an explanation of the maths and the explanation would take about 15 or 20 minutes, I hope.

HIS HONOUR:   I don’t think the explanation of the maths is the problem that has occasioned the decision of Hayne J directing the Registrar to refuse to issue the proceedings.  The issue is whether or not on the face of the proceedings you have a valid, legal claim and there are a number of difficulties which you have in that regard.

MR MORRIS:   I see.

HIS HONOUR:   Perhaps it would be helpful if I outlined to you what the difficulties were and then you can tell me whether you’re in a position to meet them today and if you’re not, I’ll have to consider whether or not an adjournment should be granted to you.

MR MORRIS:   Thank you, your Honour.

HIS HONOUR:   The first difficulty is that your statement of claim doesn’t really indicate the basis on which you are asserting that the New South Wales Traffic Act – or Regulations – give rise to the relief that you seek. You don’t, for example, indicate whether or not you are seeking relief under the Constitution of the Commonwealth or some other basis and it’s necessary for that to be specified for a number of reasons, one of which is that if you are seeking relief under the Constitution certain obligations arise under the Judiciary Act to give notice to the Attorneys-General of the Commonwealth, the States and the Territories.  So that’s the first problem.

The second problem is that you don’t reveal in your process what interest you have, if any, to claim the determination of the court of the suggested controversy that you are bringing to the court. From the earliest days of the court it has been made clear that we don’t wit here to give academic opinions, we are here to deal with live controversies between either one citizen and another citizen or a citizen and the State and the process that you have tendered, on the face of it, seems to be seeking an academic opinion from the court because you, as a mechanical engineer, are interested. I’m afraid we’re just too busy and it is contrary to the Constitution for the court to offer hypothetical opinions.

The third difficulty is that the article of the International Covenant on Civil and Political Rights which you invoke, article 6.1, referring to arbitrary deprivation of life, appears in a provision and in a context which is not dealing with – at least it seems to me – the kind of deprivation of life that you’re concerned with.

It has been used in international jurisprudence to deal with cases of arbitrary executions and that, for example, is the way it was interpreted by the United Nations Human Rights Committee in a case against Suriname which I will leave with my associate and you can have a look at that if you want to.

So that I think though it is perhaps an understandable construction that you put on it, in the context, the article in the International Covenant on Civil and Political Rights is dealing with governmental abuse of a kind which is unfortunately common in other countries, of the arbitrary termination of life by their forces of government in the context of abductions, disappearances or summary executions and not the kind of problem that you are seeking to raise.

But the most fundamental difficulty you have is that the International Covenant on Civil and Political Rights which you appear to be relying on is not part of the domestic law of Australia.  It is referred to in a schedule to the Human Rights and Equal Opportunity Commission Act but it hasn’t, as such, been incorporated into the municipal law of the Commonwealth or of the State of New South Wales, therefore it is not, as such, part of the law.

It would be natural for a lay-person to assume that because it is at a higher level of extraction and deals with a number of countries that it is superior to Australian law, but that is not the case.  A court of this country is bound to apply the law of Australia and unless it is incorporated as part of the law of Australia it cannot be given direct application.  It can be used to interpret the law but it cannot be given direct force.

So that they are four difficulties which your process appears to have and they seem to me, at least at the moment unassisted by any argument to the contrary. to be completely fatal to your bringing the case and they appear to explain why Hayne J has directed that the matter should not proceed without leave.

MR MORRIS:   Thank you.  I have got a couple of answers to those if I might be given opportunity.

HIS HONOUR:   Well, the court is just too busy I’m afraid, to be dealing with this matter in dribs and drabs.  Either we are to proceed today or you are to ask for an adjournment in which event I would have to decide whether – the matter having been on notice for some time – the adjournment should be granted.  If it were granted then it would have to come back on another day when you were legally represented.  Do you ask for an adjournment, or not?

MR MORRIS:   Yes, please, your Honour.

HIS HONOUR:   What is the reason why you have left it until this late stage to seek an adjournment?  I have specially listed this matter today so that it could be dealt with before the end of the year.

MR MORRIS:   I did not expect that things would come with such a rapid response and I expected that I would have time between being given notice of an appearance and actually appearing, of a bit more than three days.  In that case I propose to approach some solicitors – I did not approach one – and seek assistance.  I believe that I do comply with at least two of the four points you made, and about the other two I feel that there could be at least some sort of an argument and these are the reasons that I would request an adjournment, your Honour.

HIS HONOUR:   Well, have you any indication of how you would deal with the last point which is the most fundamental point because on the face of it it’s completely ‑ ‑ ‑

MR MORRIS:   The one bout the non-compliance, yes, your Honour.  As a matter of fact, Australia is signatory to this agreement.

HIS HONOUR:   That’s true, but it hasn’t been made part of Australia’s domestic law.  Australia is a party to the International Covenant on Civil and Political Rights.  Indeed, it is a party to the First Optional Protocol to the International Covenant on Civil and Political Rights which gives people in Australia a right of access to the Human Rights Committee of the United Nations in the event that the law of this country does not conform to the International Covenant on Civil and Political Rights, but it is not as such part of the law of Australia.  Successive governments and Parliaments have declined or refrained from making it part of the law.

MR MORRIS:   My advice, your Honour, is that Australia has a federal constitutional system.  Its legislative, executive and judicial powers are shared.  The implementation of the treaty throughout Australia will be effected by the Commonwealth, State and Territories authorities having regard to respective constitutional powers and arrangements concerning their exercise.  That is Preservations Article 10 and that was passed some years ago.

HIS HONOUR:   That does not meet the problem which I have raised with you.  On the face of things, Mr Morris, your claim appears to me to be hopeless and a waste of the court’s time and of your time.

MR MORRIS:   Yes.  Thank you.

HIS HONOUR:   However, as it has proceeded today ex parte without troubling the State of New South Wales and is, therefore, no inconvenience to anybody else except myself and yourself and the court staff, I don’t imagine that it could be said that there is a great reason why the matter should not be adjourned.  But if it were adjourned it would not now come before the court until some time about the middle of February.

MR MORRIS:   That would be very agreeable, your Honour.

HIS HONOUR:   It may be that if you take out the transcript of the matters which I have raised with you and placed it before a lawyer, the lawyer will give you advice on those matters and inform you that the application is misconceived, bound to fail and to run you into a lot of costs, and in that event you may save yourself a lot of expense and save the State of New South Wales some inconvenience and save the court some time, but that should be your privilege.  You ask for an adjournment.  I will give you an adjournment and I’ll adjourn the matter to a date to be fixed in the middle of February and it should come back before me after the February sittings of the court, a date which will be notified to you.

MR MORRIS:   Thank you for your trouble, your Honour.

HIS HONOUR:   The order therefore is the proceedings adjourned until a date in February to be notified to the applicant by the Registrar.  The Court will now adjourn.

AT 9.45 AM THE MATTER WAS ADJOURNED