Piepkorn v State of South Australia

[1995] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No A9 of 1995
  Adelaide

B e t w e e n -

HENRIETTE PIEPKORN

Respondent Plaintiff

and

THE STATE OF SOUTH AUSTRALIA

Applicant Defendant

Application to strike out writ and statement of claim

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 2.30 PM

Copyright in the High Court of Australia

MR B.M. SELWAY, QC, Crown Solicitor for the State of South Australia:   If it please your Honour, I appear with my friend, MS G.L. EBBECK, for the State of South Australia.  (instructed by the Crown Solicitor for the State of South Australia)

MS H. PIEPKORN:   And I am Ms Piepkorn, who entered the summons by ‑ ‑ ‑

HIS HONOUR:   Yes, Mr Selway.

MR SELWAY:   Thank you, your Honour.  This is our application.  We are seeking an order in the alternative.  The first is that the writ of summons and statement of claim be struck out for want of jurisdiction and the second is that the statement of claim be struck out for failure to disclose a cause of action.

HIS HONOUR:   That is put as an alternative, is it?

MR SELWAY:   It is put as an alternative, your Honour.

HIS HONOUR:   Well, if the writ goes - - -

MR SELWAY:   The whole lot goes.

HIS HONOUR:   The whole lot goes, yes.

MR SELWAY:   In terms of the jurisdiction, if I could refer to Ms Ebbeck’s affidavit of 10 April.

HIS HONOUR:   I have read her affidavit.  You rely on Order 11 rule 5.

MR SELWAY:   Yes, your Honour.

HIS HONOUR:   You filed your summons the same day as you entered an appearance but I take it you rely on the judgment of the Acting Chief Justice in Laing’s Case, do you?

MR SELWAY:   Yes, your Honour.  I think it is one line in that judgment where his Honour says that you can take a jurisdictional point under that rule.  We would say that, in any event, where the jurisdiction, as for this Court, goes to the nature of the court’s jurisdiction, a jurisdiction point can be taken at any time.

HIS HONOUR:   Yes, I follow that.  I understand your argument, thank you, Mr Selway.  Now, Ms Piepkorn, you understand that this is an application that this Court has no jurisdiction.

MS PIEPKORN:   That is correct, your Honour, and I would just like to refer to an argument which was given by the High Court in the Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 35 ALR 135. The High Court, Gibbs, Stephen, Mason, Murphy and Aickin held that s144A(5) was a valid exercise of the Commonwealth power and 144A(5) regulates the relationship of the employer and the employee and if the provision does not more than that, the prosecutors must succeed for it is established the powers of Parliament do not enable it to enact general legislation with respect to industrial relations.

HIS HONOUR:   I appreciate that but that is a decision which concerns whether or not the Commonwealth had power to make a specific provision and whether or not it was contrary to the Constitution. But the argument that is put against you is that your statement of claim does not identify any cause of action which would attract the jurisdiction of this Court. As you are aware, this Court is not like the Supreme Court of South Australia. We have a very limited original jurisdiction.

MS PIEPKORN:   That is correct.  Well, your Honour, first of all, I would like to present the Court with something to prove one point.

HIS HONOUR:   Yes.

MS PIEPKORN:   That as the Court has always ruled to a third party appeal, which really is contempt, I would like to give you two letters from two employers who are involved in this third party action.  One is from the employees chambers concerning Caroma Industries with my employment with Caroma Industries, the parent partner - - -

HIS HONOUR:   I will look at these but they do not really seem to me to deal with the problem.

MS PIEPKORN:   The problem is the government stepped into my private employment contract with Caroma Industries, entered a third party, which made me bankrupt for the State to extort property.

HIS HONOUR:   I understand how you put it but even if the allegations that you make against the State are correct, that would not give this Court jurisdiction.  Perhaps the Supreme Court has jurisdiction.

MS PIEPKORN:   No, it has not because it concerns the other States as well because it is really got to do with the union situation as well because each worker is under this employment thing from the Industrial Relations Act 1988 which is under s111 and it is under (1A) which is employment agreement which was entered into under State law. Now, I entered that State agreement into an employment contract with my employer which is a private matter between him and myself. Now, through the government or through the State and through Parliament I was refused medical treatment, I was made bankrupt for posing the fact that - - -

HIS HONOUR:   I understand all the allegations that you make and I have read the material very carefully that you put before the Court, headed “EXHIBITS IN SUPPORT OF SUMMONS”.  I have read all that very carefully, including all the things that happened to you.  The application before the Guardianship Board against you failed, I gather.

MS PIEPKORN:   It did, that is correct.  The fact is that the Supreme Court was unable to give me evidence and so was the Federal Bankruptcy Court - was unable to give me evidence that Hockley was my employer or involved in my employment and they also failed to give me from the Supreme Court that Caroma Industries had any involvement with Perrett & Partners and is a taxation fraud.

HIS HONOUR:   You make these allegations, but the fact is that even if you could prove everything that you have told me this morning, they do not attract the jurisdiction of this Court.  There is nothing that would enable this Court to entertain such an action.

MS PIEPKORN:   Well, it has taken away my right to work, which is not only concerning me, it concerns everybody who goes into a compensation situation.

HIS HONOUR:   But this Court has got no jurisdiction to deal with that matter. Our jurisdiction is limited by the Constitution and by the Judiciary Act and there is just no identifiable cause of action in your statement of claim.

MS PIEPKORN:   The Taxation Department stated to me that seeing that the Supreme Court and the State ruled that Wallmans were involved in the employment and in the Caroma Industries Case, they have not been able to give me the accounts that stated I instructed them to act on my behalf which the taxation states I should get.  Now, the State cannot give that to me.

HIS HONOUR:   Well, whatever remedy you may have in relation to these matters, it is not in this Court.  It really concerns me, particularly when I read your document, “EXHIBITS IN SUPPORT OF SUMMONS” to see the number of actions that you have brought, the number of cases that you have failed in and orders for costs have been made against you and the money that you got in your judgment from Justice Bollen, no doubt, long gone.

MS PIEPKORN:   Your Honour, that is why the extortion of property goes about.  Now, the court - they ruled against me for the legal set-off situation which the High Court is fully aware of the legal set-off.  That is a parliamentary thing to prevent prosecution against the parties involved in industrial fraud.  Now, the State is involved in medical perjury which happens in industrial compensation situations.  Now, the government was involved in the employment thing, that I had a third party put on to it which I am certain I know who I am employed with.

HIS HONOUR:   That may be, but the problem is that there is nothing that attracts the jurisdiction of this Court.  I would be the last person to encourage anybody to take litigation.  Litigation is something to be avoided by everybody and particularly persons without legal training or legal assistance.

MS PIEPKORN:   Well, I have had nine years of this and another thing is that I was informed by my union secretaries about the Solicitor-General, who took over in 1987, which was Mr Doyle, was the one who pulled off the contractual fraud.

HIS HONOUR:   Well now, I will not allow you to be making these statements.

MS PIEPKORN:   I am not making any statements.  If you read through my exhibits, I have got one in - - -

HIS HONOUR:   I have read through your exhibits.  Really, it has got nothing to do with the application that is before me.  What is put against you is that your writ of summons and your statement of claim do not show anything that brings the matter within the jurisdiction of the Court.

MS PIEPKORN:   I suppose it does not concern the High Court about the contracts of employment for everybody in this country.

HIS HONOUR:   There is no jurisdiction in the High Court to deal with those matters. The High Court is not some sort of super ombudsman that inquires into rights and wrongs. It can only deal with the matters which the Constitution or the Judiciary Act give it power.

MS PIEPKORN:   But if I go against the State for the industrial compensation fraud in which they refused me medical treatment which is medical perjury and everything like this, that is a physical assault too from the State.  That is only not me; that is every worker in the whole country.

HIS HONOUR:   Well, it affects you.  If you have a cause of action, it would be a cause of action which would be cognisable in one of the courts of the State but - - -

MS PIEPKORN:   It cannot be because I cannot go against the agreement I made with the State government for the industrial compensation fraud.

HIS HONOUR:   That may or may not be the case but, in any event, there is nothing - - -

MS PIEPKORN:   Anyway, I would just like to hand you these two things that proves there was no third party involved.  Now, if there was no third party involved with Hockley as a third party, then that is in contempt of court.  Now, they gave contempt of court in 1983 when they were in Melbourne.  They refused to turn up.  They had no evidence for defence.  Now, I want a contempt of court charge against them and that is a High Court jurisdiction.

HIS HONOUR:   I am afraid there is nothing to do with the High Court.

MS PIEPKORN:   You cannot deny this.

HIS HONOUR:   Ms Piepkorn, we are dealing here with your summons and statement of claim.  Now, is there anything further that you want to put to me?  I have studied the materials with as much care as I could devote to it and there is nothing there that attracts the jurisdiction of this Court.

MS PIEPKORN:   Oh, then I suppose that they do not have to prove that Bowen Pain had a co-solicitor acting with him because I do not want to approach Bowen Pain about this, Judge Bollen Pain.  Now, I have got it here he was alone acting in this matter and where the other part which the government put in which was under Doyle’s jurisdiction put in another firm.  Now, I am not going to be extorted by the government.

HIS HONOUR:   Now, please, do not raise your voice and I cannot allow you to take up this Court’s time - - -

MS PIEPKORN:   I am not, your Honour.

HIS HONOUR:   - - - with statements that have no substance so far as this Court is concerned, Ms Piepkorn.

MS PIEPKORN:   Then, your Honour, then you prove to me - - -

HIS HONOUR:   I do not have to prove anything at all.

MS PIEPKORN:   The Court has to prove it.  It states in the books.

HIS HONOUR:   Have you got any further submissions to make as to why your writ of summons and statement of claim should not be set aside?

MS PIEPKORN:   Because it is - well, then it is what they call taking action - it is like the ACTU said to me, because I am a worker, the courts will naturally be against me. 

HIS HONOUR:   That is quite wrong.

MS PIEPKORN:   That is abuse - anyway, I would just like you to read these two because they cannot prove to me that they were a third party and I want the bankruptcy annulled.  It never existed - - -

HIS HONOUR:   I do not think they have anything to do with this case but I will look at them - - -

MS PIEPKORN:   If involved, because they may be.

HIS HONOUR:   But I am not going to sit here and have the Court’s time wasted by matters that have no relevance to what is before the Court, Ms Piepkorn.

MS PIEPKORN:   If it is under that one then I still call it under 75 because I am still going against the State because they cost me my job.

HIS HONOUR:   You cannot simply bring an action in the High Court against a State.

MS PIEPKORN:   I can because, I mean, if I went to the State - I have been to several different employers.  They cannot employ me because I am still employed by Caroma Industries.  Caroma Industries cannot give me the job back because the State will not allow them because of Lewis, Colin Lewis.  Now, they stopped my employment ability.  I have been to Mitsubishi, I have been Clipsal, they cannot employ me because the State will not allow me to be employed.  Now, that is taking away my right to work and that falls under the Industrial Relations Act.

HIS HONOUR:   If it does, then it is a matter that can be litigated in the Industrial Relations Court.

MS PIEPKORN:   It cannot be because I have been there.

HIS HONOUR:   Then, if you have no remedy there - the fact that you have got no remedy there does not mean that you have a remedy here.

MS PIEPKORN:   If you read, your Honour, the Industrial Court said ‑ ‑ ‑

HIS HONOUR:   I will hand these documents down.  Have you got anything further to put as to why your writ of summons should not be set aside?

MS PIEPKORN:   Well, it should not be set aside because also they falsely want me imprisoned.  That was the Guardianship - - -

HIS HONOUR:   Again, that is not a matter that falls within the jurisdiction.

MS PIEPKORN:   Well then, what falls with the High Court?

HIS HONOUR:   That is set out in various provisions:  in section 30 of the Judiciary Act as well as section 75 of the Constitution.

MS PIEPKORN:   That is the whole thing.  I am suing the State because they cost me a job.

HIS HONOUR:   But suing the State is not itself sufficient to attract the jurisdiction of the Court.

MS PIEPKORN:   But then the State are not reliable.  I mean, if they do this State industrial compensation fraud and they prevent people from working - and that does not go for me, that goes for everyone, and the rules are that if you go to work they give you three months be allowed to work then you have to get sacked.  If you read the one thing through in the industrial thing, Caroma had to sack me because it was instructed from the insurance company which is from the government.  Now, I want the Court to prove to me the legality of the - - -

HIS HONOUR:   The Court does not have to prove anything.  Now, Ms Piepkorn, I have been very patient with you.  There is no substance in anything that you have put to me so far.

MS PIEPKORN:   Is it because of the blackmail that Doyle has against you and Jones?

HIS HONOUR:   I will not have you making remarks like that.  You will sit down and resume your seat and I will now deal with this matter.

This is an application by summons dated 11 April 1995 by the defendant in these proceedings to set aside the writ of summons and statement of claim for want of jurisdiction.  Alternatively, the defendant seeks to strike out the plaintiff’s summons.

The writ of summons and statement of claim does not identify any cause of action or matter that attracts the original jurisdiction of this Court. The statement of claim makes reference to a number of provisions in the Constitution and a number of South Australian Acts and seeks to relate them to various assertions but they identify no cause of action and no matter that would attract the original jurisdiction of this Court.

Specifically, the statement of claim refers to section 75, section 51(xxiv), section 51(xxvi) and section 51(xvii) of the Constitution but the reference to those provisions in no way identifies any relevant cause or action or matter. Consequently, section 30 of the Judiciary Act confers no jurisdiction on this Court, nor does section 75 of the Constitution.

In its application, the defendant relies on Order 11 rule 5 of the High Court Rules which provides:

“5. A defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion:

(a) to set aside the writ or other originating process;
...”

On 11 April 1995, the same day on which the defendant filed the summons to set aside the writ, it entered an appearance.  The fact that the defendant has entered an unconditional appearance might, at first sight, be thought to make the provisions of Order 11 rule 5 inapplicable.  However, in Laing v Lowe (1993) 67 ALJR 710, Acting Chief Justice Brennan said:

It appears in this case that the summons is one to set aside the writ or other originating process.  The earlier provisions of r 5 do not appear to me to be conditions precedent to the right to take out such a summons.  Such a summons may be taken out after appearance if that is thought to be desirable where there is no jurisdiction in the Court to entertain the proceedings.

In my view, it is plain from the writ of summons and the statement of claim that the Court has no jurisdiction in the matter.  The appropriate order is an order under Order 11 rule 5 setting aside the writ of summons and I so order.

Is there anything further, Mr Selway?

MR SELWAY:   No, thank you, your Honour.

HIS HONOUR:   Adjourn the Court.

AT 2.49 PM THE MATTER WAS CONCLUDED