Re Cusack

[1989] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Registry	No C6 of 1989
In the matter of -

An application for leave

to appeal pursuant to
section 34(2) of the

Judiciary Act 1903 by

PATRICK LEO CUSACK

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

Cusack(2)

AT BRISBANE ON FRIDAY, 30 JUNE 1989, AT 12.32 PM

Copyright in the High Court of Australia

BlTl0/1/JM 1 30/6/89

BRENNAN J:  Yes, Mr Cusack?

MR P.L. CUSACK:  Thank you, Your Honour. The vision

in my mind at the moment is of a television

advertisement for a particular brand of

socks, Your Honours. I do not know whether you
have seen it. It is set in Holland beside a

dyke where a tiny, young gentleman has his

finger in a hole in the dyke and suddenly has

a call of nature thrust upon him. How does he

save the dyke from collapsing without taking his finger out of the hole? He reaches down,

manages to take a sock off, plugs the hole in

the dyke with the sock and then proceeds to

attend to his call of nature. I feel just a

little like that boy in that television

commercial, Your Honours. The fin~er in the

dyke cannot be removed, but the dyke does have a

leak in it. I do not know whether my sock

will be adequate to the task of holding that

flood but it seems that that is my task today.

Having seen my colleague refused before me

in an application which is essentially the same

as mine, the onus upon me is doubly difficult.

Doubly because I have seen Mr Skyring refused

on essentially the same grounds on which I

will apply. It therefore appears that it is

reduced to my talents with the spoken word to

sway you to give a different judgment in my

case. I shall initially do exactly as I

understood you to instruct Mr Skyring to do and

address Mr Justice McHugh's judgment. It has

been my practice at most of these situations,

Your Honours, to prepare written submissions

but in this situation I have done none and this

is completely off the cuff.

The crucial portion of Mr Justice McHugh's

judgment which i$ SQUf.,ht to be challenged reads

as follows:	"Mr Skyring sought to distinguish
the judgment of the Full Court by suggesting

that it had been overruled by implication."

Further on, "I was not referred to any remarks

of this Court specifically reversing that

decision". Now, I believe, Your Honours, the

wording itself is - the crucial wording is

"distinguish" in the first portion I quoted, and
the crucial wording in the second part is "remarks
of this Court specifically reversing that decision".

In relation to distinction, this is one of the fundamental characteristics of human beings

is their ability to distinguish. The process

involves drawing a boundary. A distinction in

the case of law has apparently some s~ecial meaning

which for myseli and for Mr Skyring, is a little

difficult to comprehend, perhaps because the words

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tend to ado~t special meanings for the legal

orofession, whereas we common people are stuck

with the ordinary meaning of words as we use

them every day.

BRENNAN J: Lest there be any misunderstanding about it,

the usual meaning attributed to the term

in law is that the cases are so different that

the first case which was decided a narticular

way provides no precedent for the second.

MR CUSACK:  Thank you, Your Honour. I have seen this

word before in one earlier stage of my own

matters before the supreme court. In fact,

in OS713 before the supreme court which was

a matter I initiated myself and took through

the appeal process to the Full Court. I believe

on that occasion I sought and succeeded to make
a distinction between my particular case as I

now find it developing around me and the cases

which have preceded me in time, the historical

precedents in this matter now brought by

Mr Skyring and myself on various other matters.

I do not need to refer to the oarticulars

of my most recent matters in the supreme court;

you have read that material in the record,

Your Honour?

BRENNAN J:  I have not read the material of the -proceedings

in the supreme court; I have read the judgment

of Mr Justice McHugh in this Court, which is the

relevant matter for our consideration.

MR CUSACK: Since distinction is important, Your Honour,

in relation to the portion of his judgment which

I wish to challenge, it would perhaps be worth

my while in drawing your attention to the essential

matters of the supreme court proceedings most

recently affecting me prior to this incident.

BRENNAN J:	Why is that, Mr Cusack?
MR CUSACK:	In terms of distinction, Your Honour. The

distinction of - - -

BRENNAN J: But we are distinguishing - the question of

distinction that is relevant here is whether

the case .before Mr Justice McHugh was to be
distinguished from the case which was before

the Full Court in the matter which you cited.

MR CUSACK:  Of SKYRING?

BRENNAN J: Yes.

MR CUSACK:  The matters which Mr Skyring litigated in the

first instance were quite simply categorized,

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I think, Your Honour, as being put in the

abstract in relation to the legal tender issue,

the currency question. The currency question

had up to the point of Mr Justice McHugh's judgment always been placed in an abstract

context.	The abstract propositions were dealt
with as abstract propositions.	The situation

which I presented to Mr Justice McHugh was

in fact a concrete situation which involved a

serious denial of justice on a very 9ractical

and demonstrable issue,which issue apparently
was discounted in favour of placing emphasis
on theoretical and abstract propositions which

had been put by Mr Skyring.

The present situation, Your Honour, has

extended the seriousness of the distinction which

I sought to draw at that stage one step further and

has resulted in one of the nnst, gross denials of justice
which can possibly be comprehended in a judicial

system under common law. I have been denied an

appeal in the supreme court because the Reserve

Bank of Australia refused to accept the Queen's

money from the court itself.	I tendered money
an unjust impost for the mounting of an appeal. I placed seven gold coins on the table in the	to the supreme court to pay what I regard as the supreme court refused to accept that money,
that money being a legal tender in the strictest
sense of section 16 and 22 of the CURRENCY ACT
and section 115 of the CONSTITUTION. I actually
made a legal tender in the supreme court. The
court itself, the Queen speaking through the court, refused to recoenize the Queen's own warrant in
money - - -

BRENNAN J:	Mr Cusack - - -
MR CUSACK:	- - - denying me an appeal.

BRENNAN J:  You will concentrate upon the matters we have

to deal with, will you not?

MR CUSACK: 

I am attempting to concentrate of the word,

and focus on the word "distinction", Your Honour,
and the distinction I am attempting to make is

that the abstract concepts which were judged on

in the first instance by Justice Deane were, as

Mr Skyring has said before me, fairly judged.

That is ,.a statement of the status quo. The status quo in law is not what I am confronted

with.  I am confronted by physical realities

of denials of justice which were put to

Justice McHugh and he sees no distinction -

there is no distinction between the two cases
in his mind at the time he makes his judgment.

The overruling of the previous judgment by

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implication has occurred in so far as the

arguments sought to be put in the physical context

were put and no demur was made against the

propositions put, that there is a constitutional

bar and an explanation of how the bar operates.

The physical evidence which has been

effectively discounted by the judgments given

to date in my own case, particularly by

Justice McHugh, the discounting of that evidence

prevents him from properly comprehending the

distinction which needs to be made between

It is extremely difficult to find specific remarks	the later judgments and the earlier judgments.
specifically reversing the earlier decision because the point of an overruling by implication is that there is no specific wording overruling the determination. It is in fact a masterful statement
of the situation. As I said, Mr Justice McHugh
quite masterfully stated the situation. The
overruling to be done is an overruling by implication and it is impossible to give specific
words or remarks which do allow me to cause that
overruling to occur.

The overruling of a judgment by implication

must be one of the most difficult things for a

Queen's Counsel to achieve, Your Honour, let alone for a

layman. I am reduced to my understanding of the

ordinary meaning of words without the benefit of experience or precedent searches through history

and I really can only repeat myself in relation to

that particulan matter. I believe that the - - -

BRENNAN J:	Mr Cusack, the basia problem that confronts both you and Mr Skyring perhaps consists in this:
that the courts are able to deal with challenges
made to the validity of statutes only when ~ proceedings are.-in such a ·fonn. as to allow them to
apply their traditional methods of reasoning to
the question of whether the statute is valid or
not.  However serious the problem may be of an
invalid statute and however much it may impinge
upon the interests of particular people, the only
way that the courts are able to deal with it is if the .proceedings are cast in such a form that the
re!evant issues for determination, that is the issues of validity, constitutional validity, are
produced so that the Court can apply its traditional
methods of reasoning to come to a judgment. The
problem with the proceedings in this case, as in
Mr Skyring's, is that they are not even remotely like the kind of proceedings which allow us to do
that. So that however much you wish to challenge
these statutes, the form in which it is done is
quite inappropriate.

Now there is not much that we can do to be

of assistance to you in this field. We cannot,

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as it were, take over the reins of a litigation

for a litigant who wishes to appear in person.

He either gets it right, or he does not.

MR CUSACK:  I appreciate your point, Your Honour. Let me

perhaps address that very briefly. Traditional
practices and traditional methods in my own
particular case would not be uractical or realistic.

t would require solicitor, Queen's Counsel and more
money than I am ever likely to see again in my

lifetime, Your Honour. The point of taking a

step in a new direction, an initiative, is-to

demonstrate that these things can be done

differently from the traditional manner in which

they have been done, not only because it is a

cor- ct way to do it but because it is more

eco: __ :,mical of time, it is more economical of

resources and it is quite often a refreshing

change to see a little initiative shown in what
can otherwise become a very stultified and

therefore inefficient process. Our income is

innovation and initiative. In fact, I find

myself in this problem to some extent because

I was attempting to take an initiative and was

effectively stepped on by circumstances over

which I had no control.

Yes, I have sensed all along in all of

my efforts to address this issue, Your Honour,

that I am up against a very large inertia.

Speaking as an engineer, that concept is very,

very close to my understanding of nature. The
point with a large inertia is that you do not

attempt to suddenly reverse its direction, as for

example, by standing in front of a steam-roller

in the hope of making it go backwards all of a

sudden. It is more likely than not to be

do not even venture anywhere near the path it is

disastrous; you will end up squashed by the inertia.

travelling, let alone step in front of it and

Neither Mr Skyring, nor I, is attempting

ask it to stop and not run over you.

to stand in front of the steam-rol.ler\ nor in front of the

ocean-going oil tanker, but we are asking the

capta:in to have a care for the iceberg which lies

ahead. In a sense, you might cast us in the role

of the pilot who calls the attention of the master

to an obstacle dead ahead. If cost of justice

inquiries are to be set up by the Senate and are

to have any effect, I would suggest they change

their name, to begin with. The very name of the

inquiry, "cost of justice" is a self-contradiction.

If you have to pay, then you are not getting justice.

This sort of concept, the naming of that commission,

itself demonstrates why Mr Skyring and I have both

in our own inimitable way maintained our unusual

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approach to the courts by seeking to adopt a

new process,for which there is valid precedent,

I might add, as outlined in de Smith's Judicial Review of Administrative Proceedures . The fact

that something has been done before, and has not

been done for a long time, certainly is not

an excuse for not doing it now. The reason why

such a process is adopted by ourselves in these

cases is effectively because it allows a message

to be got to the captain to look a little further

ahead and not allow the tanker, which might be

Australia, crashing into the iceberg which is

fairly easily foreseeable ahead of us.

This is getting way of the subject you

asked me to confine myself to, Your Honour, but

I sense that there is not much point in going

further into the argument on McHugh's judgment

unless some valid case can be put for some

change in what you have called the traditional

method of operation of yourself and your brothers.

How is the sock holding up? Is the water

about to burst through? Is the dyke about to

collapse on me?	I have no way of knowing,
Your Honour, but I can tell you one thing.	I

will not be relying entirely upon the mercy of

the Court in this matter. There are other avenues by

which correction of this issue can be achieved.

I have been experimenting with the public arena. myself over the years, first as a candidate for

Parliament. which I find a completely demoralizing

and seJ£:.:.defeat:ing attitude for issues like this.

That having been attempted and failed miserably,

I believe there are other avenues by which this

question can be addressed. One method I have

already insituted, namely,in advising people

how this issue can be turned to their advantage

by using the contradiction of the law to reduce

their taxation liability in any taxable transaction.

If you are not aware of that, I will outline it

briefly to see just what the potential for damage

to the national revenues may be if my propositions

are taken out into the public arena.

I had, prior to McHugh's judgment -

BRENNAN J: That is not our concern, Mr Cusack.

MR CUSACK:  I understand that, Your Honour, but I think

I will say this, if I may, to give you an

indication of the alternatives that face me

if I cannot convince you.

BRENNAN J: Then those are alternatives which you must

think about yourself. The problem - - -

MR CUSACK:  With respect, Your Honour, I believe that I

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will be taking those actions, if I take them,

by virtue of, and effectively upon the direction

of, the High Court of Australia because by

implication - - -

BRENNAN J: There will be no directions - - -

MR CUSACK:  - - - refusal to grant my leave to ap~eal

this issue in a controlled atmosphere will be

authority to take the issue to the public

arena.

BRENNAN J:  Mr Cusack, the decisions that this Court reaches

provide no authority to anybody to take courses

which are other than those directed by the

judgments themselves. If they - - -

MR CUSACK:  In the sense, Your Honour, that a law is

deemed valid - - -

BRENNAN J:	Mr Cusack -
MR CUSACK:	I am sorry, Your Honour.

BRENNAN J: - - - hear me out. If you choose to take

a course of conduct because you find that

the access to this Court is not what you had
hoped it to be, that is a matter for you, but
the course that you take is by no means

authorized by this Court.

MR CUSACK:  Except in so far, Your Honour, as the action

of the Court, or the decision of the Court,

effectively upholds a contradiction in our

statutes. If this Court cannot see the social

implications of a statutory conflict which can

be published at large, then I believe the Court,

as Mr Skyring went very close to saying, is

derelict in its duty to society at large. I see

an opportunity, because of this conflict, to

cause the executive powers of this State great

trouble, not because I wish to, but because the

nature and the effect of a statutory conflict is

to allow chaos in a society. If there is no

other way of correcting or addressing a conflict

in the statute through the courts, then it seems

that there will be little option but to take this

to the public arena.

BRENNAN J:	Mr Cusack - - -
MR CUSACK:	If the effect of that is chaos, then it is

the statutes - - -

BRENNAN J:  - - - we have been through that aspect now

and I think perhaps if you give us any further

submissions you have relevant to the matter that

we have to consider.

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MR CUSACK:  Since this probably is the last opportunity,

may I just pause for a moment, Your Honour?
I think I need to say, and my final word will be,

Your Honour, that the distinction may not be

easy to see.	But the overruling by implication
definitely did exist.	The fact that one is not

able to point to a specific overturning of an

earlier judgment is not sufficient grounds for

dismissing a distinction - the possible existence

of a distinction which is fully capable of

overruling a judgment by implication. I do not

believe that the two parts of that crucial

portion of McHugh's judgment are necessarily

sufficient to stand as a bar against proceeding

to an appeal against him - against his judgment.

My final point then is that the overruling

by implication does in fact exist. Part of the

reason why this is difficult to prove is that

the judgments which do overrule by implication

have not been published, to my knowledge. These

judgments were given by voice, as far as I am

aware. I have not seen a published judgment

of the more recent one which did overrule by
implication. In the absence of a written
judgment, or a written statement of the findings

of those later courts which we believe very sincerely

do overrule the earlier judgment by implication, the

task of proving that overruling - or the implication -

is doubly difficult. We are relying on recall of

what was said and trying to pit that recall against

the written word. But the seriousness of the matter,

the difficulty confronting us in proving the

implication, because of the absence of a written

judgment, I believe is sufficient grounds for leave

to be granted to have a final determination of that

issue as to whether the constitutional bar does

exist as argued and to which there was no demur.

BRENNAN J: Thank you, Mr Cusack. The judgment of

Mr Justice McHugh continues to appear to us,

as it appeared on the last occasion, to be
clearly right.	No error has been shown in

the reasoning which underlies it and the decision

which His Honour arrived at seems to us to be

beyond question. For those reasons, leave to

appeal will be refused.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

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