Munday v ACT

[2001] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Registry  No C12 of 2000

B e t w e e n -

LEONARD GEORGE MUNDAY

Applicant

and

AUSTRALIAN CAPITAL TERRITORY

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 SEPTEMBER 2001, AT 12.30 PM

Copyright in the High Court of Australia

MR L.G. MUNDAY appeared in person.

MR P.M. BISCOE, QC:   If the Court pleases, I appear with my learned friend, MR M.S. HENRY, for the respondent.  (instructed by the ACT Government Solicitor)

GAUDRON J:   Yes, Mr Munday.

MR MUNDAY:   Good afternoon, your Honours.  The reason I am here today is that I have had a couple of court cases in the Supreme Court over a right for a person to ask other people for their property at a rubbish tip which they are about to abandon.

When I first got embarked on this matter I was arrested by the ACT Police and the ACT Government and the matter was overthrown in court and I was awarded damages.  Shortly after that the ACT Government saw fit to start harassing me again, and trying to disencourage me from going to the rubbish tip.  I was not the only person.  There was a number of other people that actually go there, and they are mainly low income earners, people on pensions that pick up a few little odds and ends to try and sell at trash and treasure markets, or something.  I decided to stop the harassment and to try and head off being arrested again, that I would take the matter to the Supreme Court of the ACT.

I appeared in the Supreme Court of the ACT on 8 July 1998. Justice Higgins was the honour at that particular time.  He found that I was not allowed to what they class as “scavenge” for materials, that is, rummage through the rubbish to pick up things that I may be able to use.  He did find that I had a right to solicit for goods.  That means, your Honours, that I was able to approach other people who were depositing rubbish at the tip, and if they had items that I was interested in I was able to ask them for those items.  Justice Higgins ruled that I could do that quite legally.  I was not 100 per cent happy with judge Higgins’ decision, but I was willing to abide by the umpire’s decision.  He told me that I could no longer scavenge at the tip, but I was allowed to solicit.

I then continued soliciting for several weeks, and not scavenging, just soliciting off other people who were actually going to the tip.  Eventually the ACT Government put up a sign, and the sign said that you were not allowed to solicit, you were not allowed to beg, you were not allowed borrow, you were not allowed to do this and that.  In Justice Higgins’ first judgment he actually told me that I had the right to solicit and I was allowed to do it, and that the ACT Government did not have the right to put up new signage to change this situation.

When they put up the new signage I went back to the Supreme Court for the second time.  That was on 23 February 1999.

GAUDRON J:   How did you go back?  There seems to be some problem about that.  The first matter had concluded. 

MR MUNDAY:   In the first case, I think, your Honours, the judge said that I could go back if I needed to.  He knew what the situation was.  He knew the ACT Government would not be satisfied with the situation, and I think he just knew that we were going to go back eventually.

GAUDRON J:   Where does that emerge?

MR MUNDAY:   I think it just starts at the start, it says that, “If you need to come back leave will be granted to bring in short minutes of declaration and orders if required”, right.

GAUDRON J:   Yes.

MR MUNDAY:   I went into the Supreme Court.  I mean I am a lay person, I have only been to first year in high school.

GAUDRON J:   Yes.

MR MUNDAY:   I went into the court and I said “I need to take an injunction out against the ACT Government employees because they are harassing me”.  I filled out the forms and whatever way it was, we ended up back in court.

GAUDRON J:   Yes, but it may be of some importance to know because, prima facie, the first matter had concluded.

MR MUNDAY:   I do not think it actually concluded.  I think it was a continuation, because I think Justice Higgins realised that the ACT Government were out to give me a hard time and that it would be back in a matter of a couple of weeks.

The court cases are still the same number, the two courts cases are the same number ‑ ‑ ‑

GAUDRON J:   Yes, I know.

MR MUNDAY:   They are classed as Munday Part 1 and Munday Part 2.

GAUDRON J:   That “2” seems to be a bit of a problem.

MR MUNDAY:   I do not know, I do not understand the law that well.

GAUDRON J:   In this sense, by the time it came to Part 2 as you call it, the interests of Revolve were in issue.

MR MUNDAY:   Probably it was always an issue.

GAUDRON J:   Yes.

MR MUNDAY:   Originally Revolve called the police about 18 months before that, and I was actually arrested, and I was locked up for three hours and I got an apology off the AFP and a sum of money for false imprisonment because they did not have that power.

Anyway, moving on if we could, I went back to court on 23 February 1999 and during the proceedings of the court - and like I say I am a lay person, I have been to first year in high school - during the proceedings of the court it was held over or something for a couple of days for the judge to make his decision on Part 2.  In the meantime, there was a letter sent out from Justice Higgins’ office which said that he actually thought there may have some breaches of the Trade Practices Act involved and he would like submissions from both parties to these matters when they came back to court and he was going to recall the court.

The other learned side had just as much time, and right, as me to go and check up a few court cases.  I went in and checked up a couple of court cases and the main two that I was looking at was Tillmanns Butchery and Kim Hughes.  In the Tillmanns Butchery one there was a point there that people allowed to have supply of things to run a business or to earn an income.  By stopping people going into the tip, the ACT Government was actually blocking supply to these other individuals who collect stuff for trash and treasure markets.

With the Kim Hughes court case, that was to do with a cricketer that was not allowed to derive an income.  Now my understanding of it is, and other matters, that you are allowed to earn an income in this country from any legal avenue.  If my legal avenue to earn a little bit besides what I get on a pension is to pick up a few items at the tip and maybe sell them, I think I am entitled to do that.

McHUGH J:   The problem is, Mr Munday, although you are entitled to earn your living in any lawful way, the owner of property is entitled to prevent people coming on the land.

MR MUNDAY:   That is quite correct.

McHUGH J:   That is what the ACT has purported to do in this case.  The question is whether or not it is lawful under the Trade Practices Act.  If your argument is right it would mean, would it not, that Randwick Race Course could not stop somebody from setting up a pie stall?

MR MUNDAY:   That is quite right, your Honour.  What we are actually talking about is I am a pensioner with a station wagon that picks up several items.  Revolve is a business that employs 30 or 40 people.  They have a turnover of $1.5 million a year.  They have a big area of land provided by the government and they are running a business.  I am not in competition with them, I am just picking up a few items that I believe I am entitled to have.

Putting the onus back on you, would it not be possible for me to go outside the door and solicitor a cigarette off someone within your High Court?  Surely I am allowed to do that?

McHUGH J:   It might depend on whether or not the High Court only allows you to come in here on the condition that you do not.  That is the point.

MR MUNDAY:   You have not got a sign to that effect out there.

McHUGH J:   I know, but you can do it at the moment.

MR MUNDAY:   At the moment, I go to the rubbish tip to dump my rubbish, right.  I go up to the pay booth and I pay my $5 or $6, or whatever it is.  It went up 100 per cent last year.  I pay my money and I go in to empty rubbish.  While I am in there emptying my rubbish, your Honour might come in with a trailer with a lawnmower on it.  I might have some use for parts off that lawnmower.  What right does anyone have to stop me going over to you and saying “Excuse me, your Honour, could I have your lawnmower because I would like a couple of wheels to put on mine?”  That is all I am doing.

McHUGH J:   They say to you, “You cannot come on to our land if that is what you want to do.”

MR MUNDAY:   I am also emptying rubbish, and they have accepted my fee ‑ ‑ ‑

McHUGH J:   They say you can come on to empty your rubbish, but you cannot come on – it is like Woolworths or Coles who say you cannot come into this shop unless you consent to us opening your bags.

MR MUNDAY:   It also is, that if I went into Woolworths and I bought a packet of lollies and then I came back out and then I went back in again, and you happen to be doing your shopping and you come up and try to solicit a couple of lollies out of me, what would Woolworths do about it?  Nothing.

This whole case is twice to the Supreme Court, once to the Full Bench of the Federal Court; a QC last time and another QC this time, mega bucks for the ACT Government, and I am doing no wrong.  Justice Higgins, on two occasions said I am doing no wrong.

McHUGH J:   Mr Munday, I have got a lot of sympathy for your position.  I read all these cases, in fact I was counsel in Forbes v the New South Wales Trotting Club, which is one of the cases referred to here, but I have to tell you that having searched for some solution to your problems in the present state of the law, unless Parliament intervenes, I just do not see at the moment ‑ ‑ ‑

MR MUNDAY:   Unless who?

McHUGH J:   Unless Parliament comes to you to deal with this sort of situation.

MR MUNDAY:   The ACT Government?

McHUGH J:   Yes.

MR MUNDAY:   The ACT Government does not have much power in this town, as they have found out.  What I am putting to you, that their Honours in the Federal Court, they:

erred in their interpretation of the activities undertaken by myself and others for soliciting goods ‑

I do not actively compete with Revolve on a commercial basis, and I do not operate in the same capacity as Revolve.  That is on page 106 of my summary of argument.

If I go to the tip this afternoon as a citizen – and I will explain what happened a couple of weeks ago:  I go to the tip and I have some rubbish.  I pay my $5.  I go and empty my rubbish.  I get the urge to have a bit of a soliciting session.  I go around and ask a couple of people for a couple of items.  I run into one of my Minister’s in our local government here, I run into him at the tip, go up and have a chat to him, you know, we have a talk for about half an hour.  In all of this process I am being video taped by the ACT Government, or Thiess, or whoever is running the tip at the moment.  I am being filmed because I might be breaking the law.  I just cannot believe that can be possible.

What I did, I have gone to the Supreme Court on two occasions and they said “yes, you are doing nothing wrong”.  The justices in the Federal Court ‑ ‑ ‑

McHUGH J:   That is what Justice Higgins said, you were not doing anything wrong having regard to the conditions of the entry licence, as at that stage, and there was nothing to prohibit you scavenging goods, but immediately as soon as that judgment was out, the ACT said “well, we will fix that” and they brought in a much harsher condition of entry.

MR MUNDAY:   Much harsher, yes.  What it means is that you must go straight in, you must go straight to the tip, you must empty your rubbish and you must leave immediately.

McHUGH J:   Yes, I know.

MR MUNDAY:   Surely there is still free speech in this country.  If you or me happened to go to the tip to empty to our rubbish and a neighbour, or one of your old friends you have not seen for several years is also there emptying their rubbish, by that sign out the front you are not allowed to stop and say good day to them.  There is people at the tip every weekend talk to each other for hours.  It is a right that we have had in this country for a number of years that you can go to the tip, empty your rubbish, if you want something to take home you can take home.

The Government, like I say, has got very handed about.  I believe that they are in breach of the Trade Practices Act.  Justice Higgins believes they are in breach of the Trade Practices Act, and this is what the whole case is all about.

McHUGH J:   Yes.

MR MUNDAY:   Like I say, when it went to the Federal Court in, whatever time it was, the main thing was the judge in the Federal Court said that what I was doing was interfering with Revolve’s right to run a business.  When they took over their business, when they started this business they thought that people who were coming to the tip were actually going to abandon their rubbish.  That was the whole idea of it, was it not, it was a commercial enterprise.  If it is a commercial enterprise and it runs commercially, I actually and my son applied for this contract when it came up, when I forced it to contract, and I was told by one of the executives of Urban Services that no matter what happened, at the end of the day, the ACT Government would award the contract to Revolve.

Me and my son and some other people, we offered I think it was $12,000 and 10 per cent.  Another mob offered $8,000.  Revolve gave $800 and they got the contact.  We knew months before that happened.  So that contract really means nothing.  They then had the Government supporting them trying to stop us going in there.

McHUGH J:   Have you made any complaints to the Australian Competition and Consumer Commission?  Have you asked them to investigate on that?

MR MUNDAY:   I been through so much now, I never ever wanted it to get this far, I have been through so much.  What the whole point is that I should, as a citizen of this country, have the right to give my property to whoever I like at any time, and vice versa, any other member of the public should have the right.

McHUGH J:   The ACT says you can.  “We are not trying to stop you doing that, but what we are stopping you from doing, is coming on our land and doing it”, and that is the point.

MR MUNDAY:   The point is, your Honour ‑ ‑ ‑

McHUGH J:   I can go on to your place and knock on the door, and you can then tell me to leave.  You can also put a sign and say “do not come into this place again unless you have my prior written permission”, and if I come in I am a trespasser.

MR MUNDAY:   Yes, but the difference is, your Honour, that this is public land that belongs to the public.  The ACT tip belongs to the ACT people.  What I am putting to you is - and I have threatened this on a couple of occasions, it may happen one day - if I would like to I could put a card table and a couple of chairs and I could go up to the tip and have a barbecue up there, away from the tip face, of course, because the flies might annoy me, and I am quite within my rights to do whatever.

The police, two weeks ago, said “as long he is doing nothing illegal, we will not do anything about it because he has the right to be here, it is a public place”.  My home is private property.  The Sydney Cricket Ground is run by some trust and you are running a show, some turnout, cricket or something, and you give out pie concessions and this sort of thing, well fair enough.  I do not have the right to go and infringe on that.  I have a right to go to a public place whenever I want to, and when I go to the public place they accept my $5, they have given me a licence to go in there.  When I go in there, if I decide to go over and ask you, as another human being, surely I have the right to say “if you are going to throw this lawmower out and it is going to be squashed or buried, I have got one exactly the same at home, I would like it for parts, could I please have it?”

Surely I have that right, and surely if it is your lawnmower, you have that right to tell me “yes”, and it has got nothing to do with any government or anyone else.  It is to do between two individuals.  Right?  Now there is no great deal.

McHUGH J:   I do not want to encourage any more litigation.  It may be that there is nothing that could be done to stop you selling or buying the land, but ‑ ‑ ‑

MR MUNDAY:   I beg your pardon, your Honour?

McHUGH J:   There may be nothing to stop you buying a lawn mower, or such, as the case may be, from another person on the land, but ‑ ‑ ‑

MR MUNDAY:   Yes, there is, because if I try that they are going to arrest me.  They have told me.

McHUGH J:   But the property may pass.  You may have other problems.   You may be a trespassee, you may have done this and you may have done that.

MR MUNDAY:   It has been ruled that I was not a trespasser.  On another occasion when they arrested me they arrest me under a thing called the Crimes Against the Government Act, section 19(2) of the Crimes Act of the ACT.  Now, Justice Higgins said they never had the right to arrest me.  I was arrested and I was incarcerated for three and a half hours and at the end of the day I won that in the Supreme Court and I went on for the ACT AFP and settled out of court on the matter so it did not go any further.  But, what my whole contention is that these people, like myself, other people on pensions and that, by them not being able to go now any more and collect things they cannot earn any income at all.

I have been on a low income all my life and I have had times - your Honours might not have been through this sort of thing, but I have actually had times where two days before I got paid I did not have enough money to feed five children but I could go up to the rubbish tip and I could get some scrap metal or something up there and take it out to the scrap dealer and sell it and maybe get $10 and that will hold us off for the next 24 hours or so until pay day.

Now, these people have all been stopped by this Draconian law that the ACT Government has brought in.  If you read the actual document there, the sign itself, it says you are not allowed to trade, you are not

allowed to solicit, you are not allowed to give even give things away or anything.  Well, that has to be wrong.  It just has to be wrong.  It has to be against my rights as an individual in this country.  Thank you.

McHUGH J:   Thank you.

GAUDRON J:   Yes, we need not trouble you, Mr Biscoe.

MR BISCOE:   If the Court pleases.

GAUDRON J:   Given that the question which the applicant wishes to agitate, namely, whether the conditions which the respondent has attached to his licence to enter Mugga tip constitute an unreasonable restraint of trade, would necessarily involve the question whether the proceedings constituted by the second hearings before Justice Higgins were properly constituted, this is not a suitable vehicle for the grant of special leave.  Notwithstanding the matters raised by the applicant as to his financial position, the ordinary rule is that costs should follow the event, and accordingly, special leave is refused with costs.

AT 12.53 PM THE MATTER WAS CONCLUDED