Scott v Bowden & Ors

[2003] HCATrans 404

[2003] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S489 of 2002

B e t w e e n -

LETTY MARIE SCOTT

Applicant

and

WILLIAM HENRY BOWDEN
BARRY MEDLEY
HAROLD ROBERTSON
MICHAEL LAWSON

First Respondents

NATHAN WILLIAM SCOTT

Second Respondent

Office of the Registry
  Sydney  No S19 of 2003

B e t w e e n -

NATHAN WILLIAM SCOTT

Applicant

and

WILLIAM HENRY BOWDEN
BARRY MEDLEY
HAROLD ROBERTSON
MICHAEL LAWSON

First Respondents

LETTY MARIE SCOTT

Second Respondent

Applications for leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 2.23 PM

Copyright in the High Court of Australia

__________________

MRS L.M. SCOTT appeared in person.

MR M.P. GRANT:   If it please your Honours, I appear on behalf of the first, second and fourth respondents in Scott v Bowden.  I understood your Honours were perhaps intending to deal with Scott v Northern Territory of Australia first.  (instructed by Bowden, Medley and Lawson)

KIRBY J:   I think so, but it is a matter for Mrs Scott.  Which one would you rather deal with first, Mrs Scott?

MRS SCOTT:   We can deal with Scott v Bowden first.

KIRBY J:   Very well, that is the one we will deal with first.  You are appearing for yourself.

MRS SCOTT:   I appear for myself and my son, Nathan, and I would like to ask permission from this High Court if my assistant at law – he is a law student, Daniel Taylor, if he can assist with points of law.

KIRBY J:   Of course you can.  If you want them to say something in addition for you, then either of your sons can do that.

MRS SCOTT:   Thank you.

KIRBY J:   You can give some prompting and we will just listen to what you have to say.

MRS SCOTT:   Your Honours, the controversy here today is one of the very essence of human life and human liberty itself.  I claim the right to life and the right to equal justice and equal protection by this High Court of Australia for my husband, Douglas Bruce Scott, who was tortured and murdered by four Northern Territory prison officers.  For this I claimed the precedent of United States v The Amistad 40 US 518 at page 596, where the Supreme Court of the United States held that each person has the right to equal protection and equal justice from the courts.

KIRBY J:   Can I just interrupt you to say that I have reminded by the Registrar that in this matter the Office of the Solicitor for the Northern Territory has indicated that the whereabouts of Harold Robertson, who is one of the respondents in these proceedings, is unknown and that the Office of the Solicitor for the Northern Territory has no instructions to act on his behalf.  So that is just about Mr Robertson, but I put that on the record.  We will give you a bit more time so that you are not having to lose time because of that announcement.

MRS SCOTT:   Thank you.  What I wanted to talk about, your Honours, is where human life and human liberty are in issue and constitute the very essence of the controversy.

KIRBY J: Yes, we heard you say that. There is a bit of a problem with that statement because that was an application of some provisions in the US Constitution which we do not have in terms in our Constitution about equal protection. That is expressly provided in the United States Constitution - I think it is the 14^th amendment – but we do not have that in our Constitution. Maybe we should but we do not.

MRS SCOTT:   What about life?  Are you saying that Douglas did not have the right to his life?

KIRBY J: We do not have that in the Constitution, but everybody in Australia has a right to their life.

MRS SCOTT:   God says that Douglas had his right to life.  He gave him his right to live and that is why I have fought 19 years, your Honour.  Also, your Honours, no defence was filed by the respondents within the statutory period allowed under High Court’s Rules.  No defence has since been filed.  The prison officers have not denied having murdered my husband, Douglas.  What is not denied is admitted under High Court Rules, Order 20, rule 14:

Where an allegation of fact in a pleading –

(a)  is not denied specifically or by necessary implication; or

(b)  is not stated to be not admitted,

in the pleading of the opposite party, it shall be taken to be admitted –

Crouch v Commissioner for Railways 63 ALJR 416 is authority that this Court should have the matters heard here in Sydney where I can have an impartial tribunal which will facilitate the course of litigation. Pozniak v Smith 151 CLR 46, joint application book volume 1, page 173, line 31, it says Chief Justice Gibbs and Justices Wilson and Brennan said of section 75 of the Constitution of Australia that its purpose is to provide an impartial forum.

Your Honours, we claim our constitutional right in the High Court of Australia to an impartial forum which cannot simply be obliterated by remitter to the Northern Territory.  Your Honours, we are not forum shopping.  We are happy to have this matter heard and determined under common law in Australia and the statutory law of the Northern Territory but to have it heard and have it heard in the High Court of Australia in Sydney where I reside with my children.

I ask this High Court of Australia today to allow the appeal and to make summary judgment for the plaintiffs on the basis of the forensic evidence and eyewitness evidence and the totality of all the evidence of the murder of Douglas Bruce Scott.  His Honour Justice McHugh, your Honours, we are the victims of human rights violation.  I have put up evidence before McHugh J and he did not take this evidence of murder into consideration, but Douglas was a victim of torture and murder by the respondents who are agents of the Northern Territory, whose court Justice McHugh sent us back to.

We cannot go back to the Northern Territory Supreme Court as the widow and son of Douglas, who was a victim of the human rights violation of murder by agents of the respondents who are the agents of the Northern Territory of Australia and are still in its employ and protection.  My four children, my grandchild and I are also victims of human rights violations by the inhuman and degrading treatment from the Northern Territory of Australia and its Supreme Court.  It is too dangerous for us to go back to the Northern Territory.

I claim the authority of the case of Kurt v Turkey, authorities book No 2, page 284, where the European Court of Human Rights held that the government violated the human rights of the next of kin of the victim by their inhumane and degrading treatment:

the fact that the complainant was the mother of the victim of a human rights violation and herself the victim of the authorities’ complacency in the face of her anguish and distress, the Court finds that the respondent State is in breach of Article 3 in respect of the applicant.

The eyewitnesses have been threatened by the Northern Territory police officers.  Video testimony and transcript of the eyewitness, Jeffrey Bindai, on 12 April 1995 placed before Justice McHugh, supplementary application book volume 3, page 160, and the eyewitness would be intimidated by being forced to return to the Territory and to testify in the Supreme Court there.

We have been threatened by the Northern Territory police for putting up evidence of murder and arrested by the Queensland police on 18 October 2000 at Bribie Island at the request of the Northern Territory police CIB, Detective Sergeant Alan Hodge over Douglas’s murder and for sending the United States and the UK forensic report into Douglas’s murder up to the police.  They went and had us arrested and, your Honours, I witnessed that this happened because they arrested myself and Daniel and when we sent this evidence to the police, then we started faxing it to a member of the public that is here today, Ray Jackson, and Ray can let you know what happened because we – could he come and just let you know what happened to us?

KIRBY J:   We cannot actually receive any further evidence, so that we are sort of stuck with the record.  But there is a lot of material on the record which we have read. 

MRS SCOTT:   I understand.  The investigating officers of the Northern Territory police into the death of Douglas at the Darwin Prison are already implicated in covering Douglas’s murder to protect the respondents and the ties of the brotherhood of the police and prison officers and the judiciary will make an impartial hearing in the Northern Territory impossible.  So I claim the precedent of D.K. Basu v State of West Bengal in the Supreme Court of India, authorities book 4, item 50 at page 425, where Justice Anand said:

Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood.  No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints.

The evidence of unlawful imprisonment, torture and murder was given to the Commissioner for the Northern Territory police, Commissioner White, and the head of the CIB, John Dalby, and they continue to turn a blind eye to protect the respondents.  So I claim the precedent case of justice for custodial murder of State of Madhya Pradesh v Shayamsunder Trivedi & Ors, authorities books No 4, item 51, at page 427, the victim of torture and murder by four police officers who fabricated evidence to conceal their crime.  The Supreme Court of India convicted the officers and sentenced them to imprisonment and confiscated their assets to use in compensation to the next of kin in passing judgment, the Supreme Court said inter alia at paragraph 3.

“The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a ‘could not careless’ attitude in appreciating the evidence on the record and thereby condoning the barbarous there degree methods which are still being used, at some police stations, despite being illegal.

The courts must not lose sight of the fact that death in police custody or prison custody is perhaps one of the worst kinds of crime in civilised society governed by the rule of law and poses a serious threat to an orderly civilised society.

Here we are speaking about the police, the prison system where Douglas died and it is too dangerous for us to go back to the Northern Territory because custodial torture and murder of my husband, Douglas Bruce Scott, by four respondent prison officers who are agents of the Northern Territory is an international crime under the Torture Convention and Geneva Convention and is an act of domestic terrorism.  The murder of Douglas – Australia and this High Court owes an obligation to investigate and punish the perpetrators and award compensation to the Scott family.  Just as in the Lockerbie bombings, murder by the agents of the State is terrorism.  We are victims of an act of terrorism by agents of the Northern Territory who remain protected in its employ to the State.  Douglas was terrorised and murdered by respondents and we have been terrorised because these killers are protected by the Northern Territory of Australia.

The United Nations Security Council held Libya accountable.  I mean, United Nations Security Council Resolution 1506 held the Libyan Government accountable to hand over its agents for prosecution and punishment and to pay compensation for a violation of international law.  Your Honours ‑ ‑ ‑

KIRBY J:   I know, Mrs Scott, you are very upset about this and I must admit I was rather upset when I saw the photographs in the application book, but these are assertions against people who are not easily able to answer for themselves.  The allegations of murder and so on have not yet been proved.  So that I do not think you should take it that it is assumed that that is correct.  It has not been proved.

MRS SCOTT:   No, my husband was murdered and we have evidence of murder from – we went over to America and the Mashantucket Pequot Tribal Nation paid $US45,000 and they got forensic scientists from Scotland Yard, New York, Connecticut and Pittsburgh, Pennsylvania.  They looked ‑ ‑ ‑

KIRBY J:   Yes, but these are things that have not yet been proved in a court.

MRS SCOTT:   But this is why we are here today, because this is – I can prove it on ‑ ‑ ‑

KIRBY J:   I realise that, but at the moment we are ‑ ‑ ‑

MRS SCOTT:   ‑ ‑ ‑ the balance of probability that I can prove that Douglas was murdered.

KIRBY J:   But we are concentrating at the moment on the application for leave to appeal against the decision of Justice McHugh, so what you have to do in order to get leave to appeal is to show that there was an error in Justice McHugh’s reasons and decision which would authorise us to refer the matter to a Full Court to be heard as on an appeal.  That is what we have to concentrate on.

MRS SCOTT:   Your Honour might just like to hear from…..that Aboriginals are murdered by white people in this country ‑ ‑ ‑

KIRBY J:   I am not saying that and I am aware of the Royal Commission Report on Deaths in Custody.

MRS SCOTT:   Your Honour, I want to show you this here.  I would like to show you this.

KIRBY J:   Yes, but is this evidence that was before the courts below?

MRS SCOTT:   Yes, this was evidence before ‑ ‑ ‑

KIRBY J:   Yes, I have seen those photographs that you are showing now.

MRS SCOTT:   This big sheet - your Honours, this thick sheet did not make that mark there.

KIRBY J:   Show them to Mr Grant.  Mr Grant, do you have any objection to the Court looking at this material?

MR GRANT:   No, your Honour, they were not before the court below in this matter, but I do not object.

MRS SCOTT:   They are in the court.

KIRBY J:   There is no objection, so hand them up.  But this is not going to deal with the issue.  We have to concentrate on the issue.  The issue is any error by Justice McHugh.

MRS SCOTT:   But, your Honour, if…..does not want to give justice, I do not mind leaving Australia.  It does not matter for us to give up our Australian citizenship.  We hate the country.  We do not want to live here because we have got – my son will be the next one they want to hang.  The Aboriginals got no – we cannot live here in this nation because we are not recognised people, we are hated people.

KIRBY J:   Well, you are not hated by me or by this Court.

MRS SCOTT:   And that is why I want justice for my husband.  My husband was wrongly imprisoned for allegedly swearing in a pub.  He got 60 days on remand, his eye smashed till it was pointing the wrong way, denied bail and murdered and hung.  Douglas told me on the Wednesday they were going to kill him, and the Friday he was hung.  That is why, your Honour, my conscience has moved me to fight for Douglas and I will do that.  If I have to leave Australia, I will leave this country.  I do not want my son to live here.

KIRBY J:   Let us just start from where we stand.  You want to have this case heard and the question is where it will be heard.  You asked originally to Justice McHugh that it go to the Federal Court of Australia.  Originally you wanted it to be heard in this Court but this Court has very busy and important constitutional and appellate duties, so that it is not feasible for it to be heard before us.  That being the case, the question for Justice McHugh was where did he send it.  You did not want it to be sent to the Supreme Court of the Northern Territory because you said you would not have a fair trial of the matter, but Justice McHugh did not agree with that. 

Now you are saying it should be heard in the Supreme Court of New South Wales and that is the matter you have to address.  Where did Justice McHugh go wrong in saying that the matter should go to the Supreme Court of the Northern Territory?  Unless you can show error, we cannot in accordance with principle give you leave to appeal against his Honour’s order.  Do you wish your son to speak to the Court?

MRS SCOTT:   No, he is a law student.

KIRBY J:   He is a law student, I see.  Do you wish him to speak to the Court?

MRS SCOTT:   Yes.

KIRBY J:   What is his name?

MRS SCOTT:   Daniel Taylor.

KIRBY J:   You come forward, Mr Taylor.  You realise that there is a time limit and the time limit is almost up?

MR TAYLOR:   I do, your Honour.  At page 186 of the application book, volume 1, Justice McHugh said:

I have not the slightest doubt that the Supreme Court of the Northern Territory is an impartial tribunal.  Nor do I have the slightest doubt that the plaintiffs would receive a fair trial in an action heard in the Supreme Court ‑ ‑ ‑

KIRBY J:   Yes, we have read all that; we know that.

MR TAYLOR:   Justice Riley, your Honour, was counsel.  He has recently been appointed to the Northern Territory Supreme Court.  He was counsel for the police and prison.

KIRBY J:   The way that is dealt with, Mr Taylor, as you may know, is that first of all Justice Riley would almost certainly not sit in the case.  If he did, an objection would be taken and then questions of appearance of bias might arise and, if necessary, this Court could correct that by an application for special leave to appeal.

MR TAYLOR:   Yes, your Honour.  Justice Sally Thomas was the magistrate who sent Douglas to gaol in the first place on the charge after he was arrested for breach of bail on the alleged swearing charge.  So that is two of the judges.  Justice Martin has already exhibited a could not care less attitude to the evidence on the record, and we will come to that, your Honours.

KIRBY J:   You say that, but I do not see any evidence of that in the papers that I have read.

MR TAYLOR:   There was evidence before him which he took no notice of.

KIRBY J:   But if necessary, you know, when there is a difficulty with constituting a court, it is not unusual now in Australia to bring a judge from another State and the judge can receive a commission to be an acting judge.  Justice Priestley of the Court of Appeal of New South Wales, a former judge of the Court of Appeal, used to go to the Northern Territory as an acting judge of the Court of Appeal.  So that that is not unusual now.

MR TAYLOR:   One thing that I will say is that a matter on remitter remains a federal matter, federal jurisdiction matter, as you are obviously fully aware.

KIRBY J:   It does.

MR TAYLOR:   So that the decision in John Pfeiffer Pty Limited v Rogerson, of course the Northern Territory law must be applied by any court to which this matter is remitted, including the New South Wales Supreme Court.  So there is no question of a different law being applied.  From lines 11 onwards on page 5 of Justice McHugh’s decision, it is completely irrelevant.  The principle in Pozniak v Smith is completely irrelevant since the decision of ‑ ‑ ‑

KIRBY J:   But a matter that seems to have weighed with his Honour was the death of the deceased occurred in the Northern Territory, two of the respondents reside in the Northern Territory, the law to be applied is the law of the Northern Territory, and the relevant witnesses are in the Northern Territory and the matter is of concern to the Northern Territory.  So all of those are reasons why it would normally go to the Supreme Court of the Northern Territory.

MR TAYLOR:   They have had 19 years, your Honour, to deal with it and they have not dealt with it.  I will read to you from the Annotated Constitution of the Australian Commonwealth by John Quick and Garran at page 776 regarding residents of different States:

Here the considerations are somewhat different from both; the principle is that of providing a forum which is neither solely the plaintiff’s nor solely the defendant’s, but belongs impartially to both.  The object of the jurisdiction, in fact, is to avoid any suggestion of partiality which might arise if a litigant with a resident in another State had no option but to resort to the courts of that State.  The jurisdiction is thus based on the existence of those local citizenships and local patriotisms which are characteristic of a Federation.  Residence in a State, for the purposes of this section, should therefore be interpreted as involving a suggestion of State membership, and perhaps even of domicile.

KIRBY J:   Justice McHugh accepted that this was a case where there was diversity jurisdiction.  It was between people in different States, so he accepted that the High Court had jurisdiction.  He just said that it should not exercise the jurisdiction but should remit it to another court.

MR TAYLOR:   It is about the impartial forum, your Honour, because obviously Mrs Scott – when Justice Martin kicked out the tort action, 118 of 1992, as Mr Grant here has advised in that other case, Mrs Scott was free to start another action in tort.  Justice Madgwick in the Federal Court seems to have confused the issue because he said that you already have a Compensation (Fatal Injuries) Act in the Northern Territory, and so he kicked out the tort matter.  Now, the two did not clash at all but anyway, he said that Mrs Scott will have to start the action up there in the Northern Territory.  So we have cases in the Northern Territory where the Northern Territory Supreme Court has applied a different standard of justice for Aboriginal ‑ ‑ ‑

KIRBY J:   If that is so, then this Court stands to hear special leave applications.  If there is any appearance of bias or lack of impartiality or if there is any error that has been made, then you can come to this Court and this Court exercises its appellate jurisdiction.

MR TAYLOR:   Your Honour, the point is that Mrs Scott had a constitutional right to bring the action here in Sydney and she did that, and it has been taken away from her.

KIRBY J:   That is true, but the Court has a statutory right to remit it to another court because of the fact that it has constitutional and appellate duties that really do not permit it to be a trial court.

MR TAYLOR:   There are two cases in the Northern Territory which we will be referring to in the later matter, where Northern Territory police committed acts of playing Russian roulette on a prisoner’s head and ‑ ‑ ‑

KIRBY J:   We will hear about that in the next matter.

MR TAYLOR:   We will hear about that, but it is relevant in this circumstance because ‑ ‑ ‑

KIRBY J:   If it is relevant.

MR TAYLOR:   It is relevant because when the victim is killed, he cannot bring an action in the court, so you have a completely different standard.

KIRBY J:   Yes.  The time is up, I see, Mr Taylor.  Does Mrs Scott’s son wish to say anything in support of the application?  We will give you a couple of minutes, Mr Scott, because the time is actually up.

MR SCOTT:   I just want to say, your Honour, that I want justice for my father’s murder.  He was illegally arrested and locked up for 60 days and he was an innocent man.  He did not, you know, deserve what happened to him and I - just recently my mum told me about a law that they use in the Northern Territory that – I have forgotten the name of the case but it is to do with - Lackersteen v Jones and they use it up there that no one can bring any government officials to court and they can murder and do whatever they want but you are not allowed to bring them to court.

KIRBY J:   That is not the law in this country and this Court stands as guardian that it will never be the law.

MR SCOTT:    I understand, your Honour, but in the Northern Territory they use that law all the time and so police can get off with murder and stuff like that and assault.

KIRBY J:   You can take it from me that that would never be allowed as far as this Court is concerned.  But we have to concentrate on any error on the part of Justice McHugh because this is an application for leave to appeal from his orders.

MR SCOTT:    I understand that, but if is sent back to the Northern Territory they will use that law and ‑ ‑ ‑

KIRBY J:   If there is a complaint about that, then is the time to come to this Court on an application for special leave.  Anyway, we understand what you have to say and the time is up, I am afraid.

MR SCOTT:   Okay, thanks, your Honour.

KIRBY J:   Mr Grant, what do you have to say?

MR GRANT:   Your Honour, our submissions are set out in the summary of argument.  I do not wish to expand much on that apart from to say that ‑ ‑ ‑

KIRBY J:   What do you say about that point that was last raised from Quick and Garran that the whole point of the constitutional diversity jurisdiction was that sometimes passions run high in different parts of the Commonwealth, including the Territories, and that therefore there is the right to go to another place, namely the High Court, and now the High Court can send it somewhere else.  Could it be argued that Justice McHugh’s order frustrates that constitutional principle?

MR GRANT:   Not in our submission, your Honour.  It would seem that that extract from Quick and Garran was directed to the notion of some sort of corporate partiality on the part of different jurisdictions which might militate in favour of the matter being heard in an impartial jurisdiction.  There is no evidence at all before this Court or before Justice McHugh in relation to any such partiality.  So far as feelings in the Territory are concerned, your Honour, no evidence to indicate that there are any reasons why the matter cannot be impartially heard in the Northern Territory of Australia.  The reasons why it should be heard in that jurisdiction are overwhelming, as Justice McHugh observed.

KIRBY J:   Is there anything else you wish to say?

MR GRANT:   Nothing, your Honour.

KIRBY J:   Thank you.  Is there anything you wish to say in reply, Mrs Scott?

MRS SCOTT:   Yes.  I let the High Court of Australia know that if you send us back to the Northern Territory, you would have to take us in handcuffs because I will never go and I will just get on a plane and I ask for political asylum and leave the country because I hate this country.  I do not want to be part of this country because it has murdered our people.

KIRBY J:   I did not hear those last statements.

MRS SCOTT:   I do not want to live in a country that condones murder of our people.  We have got nowhere to go, and yet you white Australians when you get bombed in Bali, you scream for justice and want people executed, but yet us, youse can unlawfully imprison us, bash my husband, murder him and let them free.  Well, I want them in gaol and I want compensation for my kids and protection from Australia.  I am not the criminal; they are the criminals.  We have got evidence to prove murder.  The international police forensic scientists have said that my husband, Douglas, died by manual neck compression…..his hands and feet.  That is all I have got to say, your Honour.  And this is what they did, Justice Kirby, in Australia in the Northern Territory – it might not be in Australia, but in the Northern Territory.  When these two white Australians shot a sleeping Aboriginal, this white Australian mother said, “These boys are killers and I’m proud of them for shooting Aboriginals while they’re sleeping”.  We are human; we are human beings, Justice Kirby.

KIRBY J:   Well, I can assure you that that is not the attitude that I take.

MRS SCOTT:   And they got one year’s gaol for that.  Justice Kirby, we are human, we are not animals.

KIRBY J:   Of course you are not.

MRS SCOTT:   We have rights, your Honour.  Douglas was unlawfully imprisoned for swearing in a pub.  They smashed his eye and they murdered and hung him.  And eyewitnesses do not owe me anything, but they said they went in and cleaned Douglas’s blood.  One of them killers, they have got a tattoo of an eagle on the arm, and Australia has to bring them to justice, just like youse want to bring those Bali bombers to justice and America wants to bring those terrorists that went through the twin towers.  These people are terrorists.  They have put terror into Douglas, they killed him, and they put terror in us and we are too frightened to live in Australia.  I do not want to live here.  If you send us back, Justice Kirby, I am not going back.  I will just ask Colin Powell and them to take us out of Australia.  I cannot go back.  I do not want my son to be hanging by a noose because they do not care for us.  Look at all the hundreds of hangings of our people in this country.  I come from the Coniston massacres, your Honour.  They were the people.  I come from Coniston ‑ ‑ ‑

KIRBY J:   Yes, I have noticed that.

MRS SCOTT:   ‑ ‑ ‑ where they killed our people.  My uncles and grandfathers and all that, they have seen no justice in this country.  There is no justice for us.  There is no justice, your Honour, for Aboriginal people.  We are animals.

KIRBY J:   You are not animals and there is justice but it has to be according to law.  We understand the way you put the case.

On 17 December 2002 Justice McHugh in Chambers ordered that these proceedings be remitted from the High Court of Australia to the Supreme Court of the Northern Territory.  See Scott v Bowden (2002) 194 ALR 593. In the course of his reasons Justice McHugh said:

I have not the slightest doubt that the Supreme Court of the Northern Territory is an impartial tribunal.  Nor do I have the slightest doubt that the [applicants] would receive a fair trial in an action heard in the Supreme Court of that territory.  In so far as the [applicants] assert the contrary, I reject their submission which depends on nothing but an unsubstantiated assertion and the fact that certain judges of the Supreme Court of that territory have made rulings or decisions in other proceedings that are adverse to the [applicants] or the deceased.  In any event, an application for special leave to appeal to this court can always be brought against any adverse finding by the Supreme Court of the Northern Territory.

The applicants are not legally represented.  However, in the proceedings today the Court has heard from Mrs Scott, her son and Mr Taylor, a law student, whom the Court permitted to speak on their behalf.  The applicants seek leave to appeal to the Full Court from Justice McHugh’s orders.  That application is said to be made under the Judiciary Act 1903 (Cth) s 34. For the purpose of this application it will be assumed that that section applies to Justice McHugh’s order of remittal.

At the outset, we remind ourselves that the requirement for leave to appeal is less stringent than the requirement for special leave to appeal.  However, leave to appeal must be refused.  The applicants have not demonstrated error on the part of Justice McHugh.  Specifically, they have not shown any want of procedural fairness in the proceedings before his Honour which affected the correctness of his orders.

For the reasons given by Justice McHugh, it was impractical and inappropriate for this Court, with its heavy constitutional and appellate duties, to exercise original jurisdiction to conduct the trial of the proceedings sought by Mrs Scott.  The applicants must exhaust their rights in the Supreme Court of the Northern Territory, which is clearly the most appropriate court with the greatest connection to the facts in issue and with the relevant witnesses.  That is where the second and fourth respondents reside.  It is where the deceased died.  And it is where most of the prospective lay witnesses reside.

Insofar as the applicants seek a full judicial inquiry, compensation under public law and constitutional damages, assuming that such remedies or some of them are available as a matter of law, no error has been shown in Justice McHugh’s orders that the proceedings be heard in the Supreme Court of the Northern Territory. 

For these reasons leave to appeal is refused.  The costs of the proceedings in this Court are to be costs in the proceedings remitted to the Supreme Court of the Northern Territory.  Certify for counsel.

AT 2.57 PM THE MATTERS WERE CONCLUDED