Re Davison

[1997] HCA 42

HIGH COURT OF AUSTRALIA

McHUGH J

IN THE MATTER OF AN APPLICATION BY CLIVE DAVISON FOR LEAVE TO ISSUE PROCESS AGAINST THE COMMONWEALTH AND THE ADMINISTRATIVE APPEALS TRIBUNAL
Practice and procedure

(1997) 147 ALR 259

20 August 1997
Practice and procedure

Practice and procedure—Application for leave to issue writ of summons and statement of claim—Prior direction that process not to be issued without leave of a Justice—Relevant principles—Circumstances in which leave might be granted—Whether process frivolous, vexatious or abuse of process. High Court Rules—O 58 r 4(3).

Orders

Order: Application for leave to issue writ of summons and statement of claim refused.

Decision

McHUGH J.

In this matter, Mr Clive Davison ("the applicant") seeks leave to issue a writ of summons and statement of claim against the Commonwealth and the Administrative Appeals Tribunal. In my opinion, leave must be refused.

On 11 July 1997, Brennan CJ gave a direction to the Registrar of the High Court under O 58 r 4(3) of the High Court Rules to refuse to issue a writ of summons and statement of claim, which the applicant had lodged in the Court, "without the leave of a Justice first had and obtained" by the applicant. Order 58 r 4(3) provides that, where it appears to a Registrar that a writ, process or commission on its face is an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct the Registrar to issue the process or to refuse to issue it without the leave of a Justice.

Only in very clear cases do Registrars approach Justices for, or Justices make, directions under O 58 r 4(3). And Justices refuse to give leave to proceed only in very clear cases. If, on the face of the "process", there is a possibility that it is not frivolous, vexatious or an abuse of the process of the Court, the matter will be left to be dealt with in accordance with the ordinary curial processes of the Court. Those processes include:

(i) an application by the defendant under the inherent jurisdiction of the Court to prevent the abuse of its process;

(ii) an application by the defendant under O 26 r 18 to strike out a pleading that does not show a "reasonable cause of action"; and

(iii) an application by the defendant under O 63 r 2 to stay proceedings on the ground "that there is not a reasonable or probable cause of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court".

Except in the clearest cases, these are the powers that should be invoked when any suggestion concerning frivolity, vexation or abuse of process arises. It is of fundamental importance to the administration of justice in this country that a citizen should not be denied access to the ordinary curial processes of this Court unless that person has unambiguously failed to show the existence of a relevant right.

Once a direction has been made under O 58 r 4(3), it might seem unlikely that an applicant would later be able to persuade a Justice that leave to issue the process should be given. A direction is given only where the case appears to be a very clear one. Nevertheless, the sub-rule contemplates that leave may be given - and for good reason. The direction is given without hearing the applicant. No matter how clear the case may appear to be on the face of the process, it is always possible that argument by or on behalf of the applicant will persuade a Justice that leave to proceed should be given. Moreover, it is always possible that, after a direction has been made, some elucidation or development of legal principle in another case or the enactment of legislation having a retrospective effect will throw a different light on the applicant's claim.

In accordance with current practice, the present application is made on the papers. The applicant has filed an affidavit in support of the application. But it contains no arguments or reasons in support of the application other than the bare assertion that "[m]y writ concerning the Commonwealth and the Administrative Appeals Tribunal, that I lodged at the High Court was not an abuse of the process of the Court and it was not a frivolous or vexatious proceeding." In determining the application, therefore, I have no information, argument or additional materials to those that Brennan CJ had. Notwithstanding that fact, however, it is clear that I must exercise an independent judgment in the matter. But having carefully examined the proposed writ of summons and statement of claim, I have no doubt that the application must be refused.

The proposed writ of summons and statement of claim fail to disclose any proper basis upon which the proposed defendants are sued. The pleader is obviously familiar with various sections of the Constitution and a number of statutes enacted by the Parliament of the Commonwealth. But the paragraphs of the statement of claim are pleaded in such an incoherent fashion that it is impossible to know what is the basis of his claim against the proposed defendants. Some of the orders and declarations sought in the statement of claim indicate that the applicant believes that the Australian Capital Territory (Self-Government) Act 1988 (Cth) and Australian Capital Territory Self-Government Legislation Amendment Act 1992 (Cth) are invalid and that all legislation passed pursuant to them is also invalid. The alleged invalidity of this legislation of the Commonwealth and the Australian Capital Territory seems to be connected with a further claim that the Administrative Appeals Tribunal has wrongly refused to exercise its jurisdiction to review a decision of the Supreme Court of the Australian Capital Territory refusing the applicant access to "T-Documents". What right or connection the applicant has with or to these documents or how the invalidity of the legislation affects the matter does not appear from his statement of claim.

Having regard to the power conferred on the Parliament of the Commonwealth by s 122 of the Constitution and the statements in this Court in Capital Duplicators Pty Ltd v Australian Capital Territory[1] and Berwick Ltd v Gray[2],it might be thought that a claim that the Australian Capital Territory (Self-Government) Act was invalid would have little prospect of success. But if the applicant's statement of claim had shown the basis of such a challenge and that he had standing to make it, I would give him leave to mount such a challenge, provided the statement of claim was not otherwise defective.

However, the statement of claim is so badly drawn and so incoherent that the proposed defendants could not possibly know what is the case that is being made against them. Nothing in the material arguably gives rise to a cause of action against the proposed defendants even assuming that the second defendant is a legal entity which can be sued in its own name.

In addition, among other defects in the statement of claim, the applicant seeks orders directing the Commonwealth to repeal all enactments relating to self-government. The claim for these orders reveals a fundamental misunderstanding of the relationship of the Commonwealth to the Parliament and of this Court's powers when it declares that an enactment is beyond the powers of a legislature. The Court has no power to make orders directing the Commonwealth of Australia to repeal legislation.

It is unnecessary for me to deal with what I perceive to be other defects in the statement of claim. What I have said is enough to show that the proposed process is manifestly an abuse of the process of this Court. It seeks to make the Commonwealth and the Administrative Appeals Tribunal defendants in an action without properly stating the basis of the cause of action (if any) against them. In addition it seeks to obtain orders against the defendants which this Court cannot make.

The application for leave to issue the writ of summons and statement of claim must be refused.

FOOTNOTES:
[1] (1992) 177 CLR 248 at 263-265.
[2] (1976) 133 CLR 603 at 607.