Rix v The Queen

[1999] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 1999

B e t w e e n -

FREDERICK GEORGE RIX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 11.11 AM

Copyright in the High Court of Australia

MR F.G. RIX appeared in person.

KIRBY J:   You are the applicant in this matter?

MR RIX:   The applicant in these proceedings.

KIRBY J:   Are you the applicant yourself, or are you representing Mr Rix?

MR RIX:   No, I am the applicant myself.

KIRBY J:   Very well.

MR K.A. CHAPPLE:   If the Court pleases, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

KIRBY J:   Go ahead, Mr Rix.

MR RIX:   I apologise, your Honour.  I thought we were only ‑ ‑ ‑

KIRBY J:   That is all right.  We will start you from now.

MR RIX:   Thank you.  Your Honours, I am the applicant in these proceedings in a matter before the Court which is on page 305 of the application book.  The matter involves an application for special leave to appeal.  1.  The applicant applies ‑ ‑ ‑ 

KIRBY J:   The first thing is involves is an application by you for an extension of time within which to bring your application for special leave to appeal.

MR RIX:   That is 2.  I have two points, your Honour; one for an extension of time and one ‑ ‑ ‑

KIRBY J:   You had better deal with that first, because, at least on the reading of the file, that seems to be a significant matter in your case.

MR RIX:   I see.  On point 2:

The applicant applies for an extension of time within which to file the application for special leave to appeal.

KIRBY J:   Now, this was a judgment of the Court of Criminal Appeal of 11 April 1997.

MR RIX:   Exactly.

KIRBY J:   Your application was not filed until this year.

MR RIX:   I have appeared in the court below, your Honour.

KIRBY J:   I realise that.  But we are addressing, first, the question of the extension of time.

MR RIX:   It was filed on February 1999.

KIRBY J:   Yes, February 1999, is it?  I thought it was 22 January, but my document is not dated.

MR RIX:   I apologise, your Honour, 22 January 1999 it was filed.

KIRBY J:   So you are more than a year and three-quarters out of time.

MR RIX:   That is right.

KIRBY J:   That is a very long time default.

MR RIX:   It is, your Honour, and this is a very unusual case because it first came before the court in 1992 and since then, your Honour, I have been involved in quite a number of court matters directly attributed to this case.  One of them, the main one, was in the Industrial Court I appeared self‑represented and that case more or less took up a considerable time and was the reason why I was late in filing my application for leave to appeal.  That was filed in the Industrial Court.  I filed the notice against Nationwide News for a contractual dispute in the Industrial Court and that was on 21 October 1998.  That proceeded against News Limited or Nationwide News until a period 11 April 1997.  Now, that was finalised on – can I just get some papers, your Honour?

KIRBY J:   Yes, of course.  I take it that on your application for the extension of time, Mr Rix, that you read an affidavit sworn by you of 22 January 1999 in which you seek to explain the delay, is that correct?  That is in our application book, page 307, your affidavit.  Do you read that affidavit formally to us?  You do not have to actually read it, but I want to know whether you put it on record.  You rely on it.

MR RIX:   I rely on the affidavit on 22 January 1999 because ‑ ‑ ‑

KIRBY J:   Just let me ask.  Mr Chapple, you have seen this affidavit, have you?

MR CHAPPLE:   Yes, I have.

KIRBY J:   Do you have any objection to it being read?

MR CHAPPLE:   No, your Honour.

KIRBY J:   The Crown does object, though, I think to the extension of time.

MR CHAPPLE:   Yes, that is so, if your Honour pleases.

KIRBY J:   Very well.  Do you wish to ask Mr Rix any questions on his affidavit?

MR CHAPPLE:   No, your Honour.

KIRBY J:   Thank you.  Yes.

MR RIX:   The affidavit is as it appears, your Honour.  On 11 April 1997 my appeal in the court below was dismissed and around about the same time I filed the application against Nationwide News in the Industrial Court for termination of a contract of over 50 years that was more or less rescinded without any remuneration.

KIRBY J:   I realise that, and I have some sympathy for you for that, but it has nothing to do with this case.

MR RIX:   Why it has got something to do with the case, your Honour, on account of the conviction I lost my home, I lost my business, I lost my assets and the business was one of the reasons of the conviction.  If I had not been convicted in 1992, I would not have lost my business.

KIRBY J:   I realise that.  I realise that and I am sorry, but you have to establish some basis on which the Court could properly extend the time.  You see it is not as if this is just something entirely within our gift.  The Crown opposes the extension of time.  The Crown says this is almost a two‑year delay in bringing the matter.  Okay, if it is a matter of a month or two months or three months, maybe, but this is nearly two years.  You have not brought it and all you put before us is that you were employed as a contract carrier, that you filed an application for relief, that Justice Marks stayed proceedings on that matter between October 1998 and January 1999, but that really does not explain such a very long delay in bringing the proceedings to this Court.  This is the final court of the country.

MR RIX:   Well, if I may, your Honour, try to explain.  First of all, after my conviction I had a period of four years from 1 February 1996 in the Federal Court.  Now, I was charged in the Federal Court in 1996 on a similar charge because I went to gaol on the first charge and they paid an amount into my bank account that I was unaware of.  Now, when I came out that bank account was untouched, but I was charged with knowingly receiving an amount and I appeared in the Federal Court.  Now, I represented myself in that matter and it was acquitted.  But on account of my lack of knowledge with law, the charge of knowingly receiving that amount of money, I thought that was more or less a mistake.  So then I analysed the first indictment which I supposed to have been working over a period of years – and I was charged under the indictment of working whilst receiving an income and receiving a benefit. 

Now, as a layman, I thought that indictment is wrong.  I will take it to the Court of Criminal Appeal on moral grounds, which I did.  Now, that on account of it was represented on moral and compassionate issues only.  It could not succeed.

KIRBY J:   But the matters you are now seeking to agitate before us are not even matters you raised in the Court of Criminal Appeal.

MR RIX:   No because, as a layman, I have handled every case, I have been in 15 different courts on account of this ‑ ‑ ‑

KIRBY J:   I realise that that imposes a lot of problems for you.  I am sympathetic to those problems.

MR RIX:   I am just trying to ‑ ‑ ‑

KIRBY J:   But the problem for this Court is, this Court is a court of appeal.  We are dealing with an appeal.  How can you have an appeal from something which has not been the subject of consideration of the matter which you are now seeking to agitate before us, the final court of the country, for the first time.

MR RIX:   As you can see, your Honour, the points that I appeal on now are legal points.  There are three main points that I appeal on.  That is a biased judge, respondent’s submissions to the court below were in error and an unsigned record of interview which was extremely dangerous and unsafe.

KIRBY J:   And raising these for the first time in the High Court of Australia.  There is a constitutional question as to whether you can do it, but assuming you could do it, on an application which itself is nearly two years out of time, I mean you are really asking us to take a leap over three problems in your case.  You did not raise it, these points, at the trial or in the Court of Criminal Appeal, you did not raise them in the proper place where they should be agitated, the Court of Criminal Appeal, and you are two years almost out of time to raise them before this Court.  I mean, it is really hopeless, Mr Rix.

MR RIX:   When you are defending yourself, your Honour, and you are a layman, you have got to jump the hurdles as you come.

KIRBY J:   I realise that, but we have to comply with the rules.

MR RIX:   I can see that, your Honour.

KIRBY J:   One of the rules is laid down by the Constitution. We are a Court of Appeal. We are not a court at first instance in these matters.

MR RIX:   I have come up with fresh and further evidence that is backed up by the law of the land and precedents that I have got that back my three points of appeal.  As I say, constitutionally, on account of not mentioning them at the court below, I might be out of order but I am not to know that and that is why I am here this morning, trying to jump that hurdle.  I have been trying to get permission to ‑ ‑ ‑

KIRBY J:   You are not trying to jump the hurdle, you are trying to jump three hurdles.  I mean, you would have to be an Olympic hurdler to do this.

MR RIX:   Well, you can see the mammoth task I am faced with.

KIRBY J:   It is a mammoth task because all of these things are things you ought to have been - - -

MR RIX:   All I beg for is a chance to more or less submit my case from a legal point of view that it was not covered at the first trial.  I am an innocent man.  That I have got points of law where I have been unjustly dealt with and I am trying to overcome that now.

KIRBY J:   But, Mr Rix, you will understand that some people are never happy with the outcome of their case.

MR RIX:   I quite agree.  I quite agree.

KIRBY J:   And that therefore the law has principles that require people to take points promptly, otherwise they will be queuing up outside our door everyday coming back asking to reopen cases 20, 30, 40 years ago.  We cannot do that.  You have to take points promptly.

MR RIX:   I see.

KIRBY J:   And if you do not take them in the proper place at the trial in the Court of Criminal Appeal it really is not possible, and especially two years late, to come to the High Court of Australia and ask us to deal with them for the very first time.  It is not reasonable to ask that of this Court.

MR RIX:   It appears to be unreasonable, your Honour.

KIRBY J:   It is not lawful.

MR RIX:   I have got exceptional circumstances and I was trying to, you know, bring my case to have it heard in the proper court, in this honourable Court, and I am certainly not here to – it would be inappropriate for me to try and carry on like a legal professionally - - -

KIRBY J:   I realise that for a lay person, unrepresented, it is very difficult and you have put what you can in support of having a chance but I have tried to explain to you why the Court cannot give you that chance.

MR RIX:   I can see.  My case, your Honour, I put in a considerable amount of time.  I put in more or less that much time I have got piles of paper that high that I can refer to but all that has gone down the drain because when I first applied I was not aware of the constitutional rule that it would more or less be an impossible task.  That all of this has just more or less - - -

KIRBY J:   Well, I have tried to explain it to you.

MR RIX:   I can see that now.

KIRBY J:   Because you are a citizen and you are here before the Court and you are entitled to have it explained.

MR RIX:   Yes.  Well, you follow your fleeing.

KIRBY J:   But that is the problem, we have to comply with the rules.

MR RIX:   Exactly, your Honour.  As you have humbly put it to me in a nice manner that there is no way that you could allow me to continue.  So, I have got to accept that, more or less, ruling.  And I thought I had a very, very good case to, more or less, you know, put it before the Court on legal matters which, as a layman, I presented them in a moral, compassionate issues that I thought that would more or less, you know, be accepted in the lower court.  And as I say – as you say about hurdles - this was the next hurdle that I thought I could more or less, you know, pursue.  But that is your final decision, your Honour?

KIRBY J:   Yes.  Thank you very much, Mr Rix.

MR RIX:   Say, the first time.  If it please the Court, thank you, your Honour.

KIRBY J:   Thank you for appreciating the difficulties which the Court has in your case.

MR RIX:   I can see your point.  Thank you, your Honour.

KIRBY J:   Yes, thank you, Mr Rix.  Mr Chapple, we do not need your assistance.

MR CHAPPLE:   As your Honour pleases.

KIRBY J:   The points which the applicant, Mr Rix, seeks nearly two years out of time to raise in this Court were not raised in the Court of Criminal Appeal.  Even if the Court were to provide an extension of time within which to bring this application and even if it were open to Mr Rix to rely upon the points in this Court, they are, in the opinion of the Court, without substance.

The Crown opposes the extension of time within which to bring the application.  That is a reasonable objection in the circumstances.  The proper order is that the application for an extension of time within which to bring an application for special leave to appeal to this Court is refused.

MR CHAPPLE:   If the Court pleases.

KIRBY J:   The Court will now retire for a short while to reconstitute for the succeeding applications.

AT 11.27 AM THE MATTER WAS CONCLUDED