Piepkorn, Application by

[2000] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 1999

In the matter of –

An application for leave to appeal by HENRIETTE PIEPKORN against the refusal of leave to issue process

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 2000, AT 2.02 PM

Copyright in the High Court of Australia

MS H. PIEPKORN appeared in person.

GLEESON CJ:   Yes, Ms Piepkorn.

MS PIEPKORN:   Yes, your Honour, I would like to ask the Court as to why refusal of this process has been refused after I had a special hearing in 1997 with appeal 55 of 96 in a matter where I had third party extracted from my employment contract so my statute for contesting my contract of employment will be returned.  Under that Act of 144A(5) – excuse me, I will read it out.  It is in:

The constitutional validity of s.144A was tested in R.v.J.B. Sweeney; Ex Parte Northwest Exports Pty, Ltd. (1981) 35 A.L.R. 135. The High Court (Gibbs C.J. Stephen, Mason, Murphy and Aiken JJ.) held that 144(5) was a valid exercise of Commonwealth power -

This 144A regulates directly the relationship of an employer and an employee and the provision does no more than the prosecutor’s argument must succeed.  Now, my argument in A55 of 96 was that the contract of employment is a private agreement between two people as to provide the services.  One provides the services and the other one provides the labour which it explains of monetary services.  Now, as this one goes into a Commonwealth matter which was confirmed in Parliament of s 51(xxxv) by Parliament to represent…..of groups and classes from then and purposes of conciliation and arbitration, the matter here was that my employer, he is of federal jurisdiction.  He belongs to the federal jurisdiction.

When I went back to get this medical section taken care of, apparently third party was put in.  Now, I had to have third party removed to give me my Constitution 75 to go through the federal jurisdiction of the employment situation with my firm.  I will read out the things I wrote to you, what I will be taking care of.  In a High Court appeal of A55 of 96, Piepkorn v Perrett, Harrison and Partners, which I put in brackets as states third party medical, the High Court Full Court, Chief Justice Brennan F.G., and Justice Mchugh M.H. and Justice Gaudron stated in that hearing that a third party on a contract to prevent payment or extortion of money is a criminal offence.

Therefore, saying that the States, in prevention of paying of my employment contract by adding third party in, and going in a jurisdiction matter of – it is in a separate piece of paper I sent you, dated 5 May 2000, that I was asked to send to you.  It says in number 5.:

Justice Gaudron ‘stating criminal grounds of third party to contract.  The Full Court bench gave the Crown Law judgment.

I have 144A right of Commonwealth of power which gives me 75.  Now, when I delivered the case to the High Court, I was given refusal of it.  I would like to know as to why it was refused because I ‑ ‑ ‑

KIRBY J:   Well, Justice Gaudron identified that in her reasons.  She said that your:

Statement of Claim does not identify a cause of action against the State of South Australia or any other basis upon which –

you –

might be entitled to relief.

Some measure of flexibility is allowed in courts for people who are not themselves lawyers, in drawing documents, if, hidden amongst the language, appears to be a cause of action.  But the document which you filed is in the application book on pages 3 to 5 and, on the face of it, it is almost unintelligible and it does not reveal a cause of action.  If that is so, then Justice Gaudron was right to say that you should not be given leave to file it because why should a party be troubled if you do not present a document which identifies a cause of action known to the law?

MS PIEPKORN:   In the Full Court hearing of A55 of 96 when Chief Justice Brennan was discussing it with me, he said it would be very difficult to bring this to Court because it is very hard to understand because the contract of employment has never been presented in Court itself.  In an employment contract the employer is bound on his behalf that he provides occupational health and safety and welfare.  The welfare is that he provides that, like I said, money for exchange of labour.  That means that he retrenched me with injury, which 144A says he is not allowed to dismiss me with injury.  Under 144A(5)(a), an employer:

shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice –

for the reason that the employee is a prescribed person.

(b)…..threaten to dismiss -

a prescribed person or injure him in his employment or to alter his position to his prejudice for the purpose of coercing him to join an organisation of employees.

My whole main argument was in 991 of 84 which was against Caroma Industries with Justice Bollen, where they described the cases in comparable verdicts.  He said to me I was just against Caroma Industries.  In that matter it happened that it was suddenly medical perjury, and through that medical perjury I could not go against my letter of retrenchment.  I was only paid out for common law damage case, which is a State matter, which is like damages and for negligence and that from the employee.  But he could not take care of my contract of employment as the fact is I was sacked two years beforehand in 1984 and it was not his jurisdiction to handle a federal jurisdiction matter.  But before I could go to court about it, I had to verify the medical injury.  I asked this question and then a third party was put in, Perrett and Partner was put in as the State’s third party medical to that question.  Chief Justice Doyle was the Solicitor-General just the same month I put the question in and then third party was added in.

I have been trying to disprove third party, like in A37 of 89, and they would not disprove it until it was proved in A55 of 96 where Perrett and Partner, the State’s third party medical, was removed that actually A37 of 89 became contempt of court.  That appeal was wiped out on contempt of court, which they gave me back my statute right to go over my contract of employment.  As the State is still third party, I went to the federal Industrial Court.  They cannot handle it because Justice Doyle interferes again.  As the State is third party and he is responsible for the terms of contract, conditions of a contract, which is occupational health and safety, and welfare, and he refuses me, takes away my right to work and things like this, then I would just like to know as to why the Court refuses to have this issue to have a hearing on this basis of a conciliation and arbitration matter, of a very important matter, of an employment contract.

It is a humanitarian right because the welfare is involved there, the welfare of a person’s ability to support himself and survive.  If this is taken away, and this hearing will not be allowed to go to court, then it is really a breach, of perverting the course of justice on the matter because you took away the humanitarian right, a legal right, of protection of contract.

Now that is the argument that I want to bring to Court, for apparently on the third party matter with the State involved, which was removed in A55 of 96 by Justice Gaudron stating the criminal offence, she did a correct Crown law duty. Now the whole manner of A55 of 96 was done under Crown law and the question of law as to the removal of third party. Now I got my Constitution in 75 through 144A(5) through this hearing. I do not know how to exactly explain it to the Court, but I would like to have my welfare taken care of, to have my contract paid out, as the third party is apparently involved in my right to work and he is involved in the matter of my contract, like I said, took away my right to work, as to whether I cannot get any work, if I apply I am not allowed to, they say, “You know why”, and things like this.

Now, I would like this argument brought before Court to give everybody in the whole country a fair chance to their contract protection, because, I mean, if we are protected by the government’s conditions and terms, like in occupational, health, welfare and safety, then I have a right to question the right of having my welfare damaged and my safety endangered too, when they failed to reinforce their laws with the employer, and the employer is very convictive to the whole matter with the State as to provide a very safe working condition, and everything like this, but that matter would be argued in the case.

I would just like to know, when Justice Gaudron dismissed it was no cause of action, was only done after Justice Hayne wrote down, if you look on page 1 of the appeal book, where general summons is written ‑ ‑ ‑

KIRBY J:   Yes, Justice Gaudron sets this out in her reasons; she sets out that Justice Hayne made his direction and then it had to go before her before you were allowed to file and proceed on your statement of claim, so that is the procedure that is provided under the High Court Rules.

MS PIEPKORN:   Like I said, I just want this matter of contract brought into law, …..of contract brought into law, so people have a right to argue the point of the value of their ‑ ‑ ‑

KIRBY J:   Yes, and people have a right to be protected against statements of claim, which do not explain, even in an irregular way, what the claim is, and that is the complaint about your statement of claim.  It is just unintelligible.

MS PIEPKORN:   Your Honour, my claim is that the State, seeing that they instructed - I have got to take out the industrial matter here, in this Federal Court in Adelaide, but as it was, the claim is that I want my contract.  That means, the value of the contract, not the damage of a contract, which is only 25 per cent; I want the full contract paid out for its contractual value.  Seeing the State says I am not allowed to work and has me injured through their failure of providing occupational health and safety through their terms and conditions of that law.  Under:

Industrial Relations Act 1988, S111(1), (1A), subparagraph; subsection, “employment agreement”

means that an agreement that:

(a)  was entered into under State Law;

If I entered into this contract with my employer under State law, then he is third party.

KIRBY J:   These are powers of the Commission.  These are powers of the Industrial Relations Commission, not of a court.

MS PIEPKORN:   And it says he, it means an agreement was entered into under State law.  If I entered into under a State law and an employer has applied to the State law too, that means that he is third party.  Now, if he is third party, and he instructs my employer to retrench me, then he is liable for my contract, because he had me injured because he failed under occupational health and safety, and:

(b)  he regulates terms and conditions of employment.

So, therefore, he has more say about my employment contract than my employer does.  And if he wishes to have me injured for his failure of providing all these necessary things, then I would like my contract paid out for the value of it is.  Like if you buy goods and you get a contract for it.  If it breaks down, you have to get it replaced, or you get the value of the part.  Now a contract of employment is the same thing, because it is the same value, because I have my protection because when I know I go to work at least I get to do some work and I get paid for it. 

Now that binds the employer, it binds the State and it binds me to an agreement where I am also protected under occupational health and safety and welfare; that means if something happens to me, I get welfare from the social security, or something like that, but it is not necessary if I am able to work.  And if I get refused employment, then surely I am bound to have the right to have my full contract paid out, as it is supposed to be, because, I mean, I am the one who was bound by contract, like everybody’s contract and is bound by contract.  So, therefore, I am fully covered from the welfare section of that contract, I am fully covered to have my contract paid out seeing I was illegally retrenched.  I was retrenched with injury which they enforced on me through their failure of occupational health and safety.

Now, I would like this matter to go to Court so that a contract comes under law, and then I can get my contract paid out, as the State is involved and, like I said, I was in the federal Industrial Commission and I got a report back.  The Commissioner stated to me he cannot handle the matter.  He has to report it to the State Attorney-General’s Office.  And on top of that paper was written that he has to report it to Justice Doyle.  Now, I cannot understand why he puts himself into my contract situation when the whole matter handled out on a matter of medical perjury, which was wiped out with contempt of the court in A55 of 1996 when third party was taken care of. 

Now, if that is not simple enough for the High Court to understand is I just want my contract paid out and I want this law brought in that people are protected under their contract of employment law and it is not just a simple thing of just saying you can get damages and things for it, because it is not the same thing.  A contract was breached by the parties.  It was breached by the State and it was breached by the employer.  I did not breach it.  I followed instructions.

Now, I explained that all to Justice McHugh, Chief Justice Brennan and Justice Gaudron, and all she stated back was that the third party is illegal for prevention of payment of contract. Now, if they are preventing to have my contract being allowed to be handled and paid out, then that is a criminal offence from the State. They are breaching Parliament law too. As they say here in the Constitution, 51, “Powers of the Parliament”. You look on (ii):

taxation; but so as not to discriminate between States or parts of States.

They got me with taxation too, because I rang up the Taxation Office and they say to me I have to have third party proven, and if the court ruled I have third party, then that puts me in a taxation situation.  Then he made me bankrupt and insolvent to prevent prosecution against my employment contract.  That was – let me think – No 17.  Then we go on the Constitution of (xxiv):

The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States.

Now, firstly, he entered the State court, which - naturally if he belongs to the State - but then when I approached the Commonwealth courts, like the Federal Courts, he still interferes.  That is breach of jurisdiction on his behalf.  That is the State’s jurisdiction breach.

GLEESON CJ:   Ms Piepkorn, your time is up.

MS PIEPKORN:   Yes.  Just two more things, and then that is it.  The conciliation and arbitration – that is (xxxv) – which is covered up that I have the right for that.  And the parliament situation which is (xxxix).

GLEESON CJ:   Thank you.

MS PIEPKORN:   So the whole argument is that I would like just to have this case heard, as Justice Gaudron did say I am allowed to and the Full Court did say.  Thank you.

GLEESON CJ:   This is an application for leave to appeal against a decision of Justice Gaudron of this Court in which she dismissed an application for leave to issue a proceeding.  Justice Gaudron, in dismissing that application, said that:

The Statement of Claim filed by the applicant does not identify a cause of action against the State of South Australia or any other basis upon which Ms Piepkorn might be entitled to relief. 

We agree with that conclusion on the part of Justice Gaudron, and the application is dismissed.

AT 2.23 PM THE MATTER WAS CONCLUDED