Skyring, An application by

[1994] HCATrans 390

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	No Cl00 of 1994
In the matter of -

An Application by

ALAN GEORGE SKYRING, B.E.

M.I.E.Aust

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1994, AT 9.00 AM

Skyring(l6) 1 29/6/94

Copyright in the High Court of Australia

HIS HONOUR:  Mr Sk:yring, you appear in person, do you?

MR A.G. SKYRING: Yes, Your Honour.

HIS HONOUR: Yes, Mr Sk:yring, and your application is for

leave to proceed with the proceedings which are

outlined in not this summons, but the summons which

you want to issue - - -

MR SKYRING:  The one of 11 May, yes, as I understand

proceedings.

HIS HONOUR:  Yes, Mr Sk:yring. I should say that time is

limited this morning

MR SKYRING:	I will be very quick, Your Honour.
HIS HONOUR:	So, what I propose to do is to give you

20 minutes which is the time that is normally given

to applications for special leave to appeal, and I

will give you a warning at 17 minutes.

MR SKYRING:  That is far better than I have had on the last

couple of occasions, it has been five minutes, so I

am really sharpened up.

HIS HONOUR: Well, time is ticking for you now, Mr Skyring.

MR SKYRING:  To formally commence proceedings then I read my

notice of motion of 18 May and the affidavit of

that date, and the supplementary affidavits of

3 June and of 24 June.

HIS HONOUR:  I have read the affidavits.

MR SKYRING: Right, and if I may, Your Honour, I would also

like to hand up one now with today's date, which is

a very brief one, which brings the information

right up to date.

HIS HONOUR:	All right, well if you will hand that up.
MR SKYRING:	In the first part, the first item refers to the

delay in my getting the documentation on this

particular hearing.

HIS HONOUR: Well now, if you would just give me a minute to

read it.

MR SKYRING: Yes, Your Honour.

HIS HONOUR:	Yes, Mr Sk:yring.
MR SKYRING:	Okay, it is that last matter which affects me

very personally, the fact that I can be charged

with an offence under section 16 of the Crimes

Sk:yring(l6) 2 29/6/94

Currency Act. The basis of the argument put is whether, in fact, these items are in fact lawfully current - - -

HIS HONOUR:  But what you seek to do in the present

application is to obtain leave - - -

MR SKYRING: Right, the point I wish to address is that

there is a - - -

HIS HONOUR:  Can I just get clear what this application is.

It is for leave to apply for a writ of certiorari

to quash several decisions, and the decisions are -

now listen carefully - first of all that the

judgment of Justice Spender in the Federal

Court - - -

MR SKYRING: This court here, yes, Your Honour, that is what

started it, right.

HIS HONOUR:  Secondly, an order made by Justice Dowsett in

the Supreme Court - - -

MR SKYRING: That was back in 1990 - - -

HIS HONOUR:  The 17 December 1990 - - -

MR SKYRING: Yes, right, which - - -

HIS HONOUR:  And, thirdly, a decision of the Queensland

Court of Appeal which was entitled Skyring v The

Commissioner of Taxation.

MR SKYRING:  Yes, that is the fairly recent one which was

only just at the end of April, right - - -

HIS HONOUR:  Now, those are the decisions you seek to

attack, are they not?

MR SKYRING: Yes, but going further than that, then there is

the matter of the legality of the statutes behind

them, which is what brought them on in the first

place, and that is the much bigger issue.

HIS HONOUR:  So then, in addition, you seek to attack the

validity of the Telecommunications Act 1975?

MR SKYRING: Certain provisions in respect of payment. It is all these provisions to do with payment, where

there are penalties - - -

HIS HONOUR:  Yes, there is that Act

MR SKYRING: That Act, yes.

HIS HONOUR:	The Currency Act 1965?
Skyring(16)	29/6/94
MR SKYRING:	Yes, there are provisions in it in respect of the minor coinage, but that is a small order
effect.  By and large it is okay, as I understand
it.
HIS HONOUR:	But, you seek to attack some provisions of it?
MR SKYRING:	Yes, minor detail on that one, yes.
HIS HONOUR:	And, the Income Tax Assessment Act?
MR SKYRING:	Yes, it is the ultimate legality of that, as a

broad issue.

HIS HONOUR:  Yes, and finally the Commonwealth Electoral

Act?

MR SKYRING:  Yes, the point here is this matter of legal

tender versus banks' cheques, as though they are

both equivalent.

HIS HONOUR:	So, that is the nature of the proceedings which you seek - - -
MR SKYRING:	I really seek to put in train, yes,

Your Honour.

HIS HONOUR: Right. Well now, if you would address me on

that.

MR SKYRING:  Right. The point is why should I want to do

such a thing like that? In short, the situation in

which I find myself, personally, at the moment

seems to, from my reading of history and of the law
reports relevant, seems to have derived from the

fact that on the two major occasions when these

major matters have come before this Court, first of

all in 1932 there were three actions there

involving The State of New South Wales v the

Commonwealth, there were three actions involved in

that over the period March to about May, the upshot

of which was the downfall of the Lang

administration in the State of New South Wales. My reading of that is that on the third one,

particularly, when the Commonwealth moved to

garnishee the accounts of the State of New South

Wales, nobody sought to raise the matter of the formal making of the payment, it was paid by cheque

as though this were quite a legitimate way to

proceed. Had that matter been raised then, I

believe the outcome of that hearing could have been

very, very different.

The next major occasion when this matter came

up is what has been referred to as The Bank

Skyring(16) 4 29/6/94

Nationalization case, about 1947, 1948, I am not

exactly sure just when. My understanding - - -

HIS HONOUR:	1948.
MR SKYRING:	1948, yes, right.  My understanding of that was

that it was argued, essentially, under section 92

of the Constitution. Now, that section treats

trade, so the premise that was made was that

banking is properly regarded as trade. Now, the

fact of the matter is that that was presumed.

Nobody has ever formally demonstrated that banking
is properly to be regarded as trade because the essential function in the banking operation, of

which I have become aware of, is this matter of

creation of money in the deemed materialized form

of credit by taking a mortgage against

property.Now, it seems to me there is an awful

illegality in respect of that particular operation.

Now, my own view is, and I argued this before the Federal Court back in the late 1980s, that I

believe the proper way to attack this problem is

jointly, under sections 51, 12, 13 and 16. Section

12 treating currency coins and legal tender; 13 is

banking, with the exception of State banking, but including the issue of paper money; and, 16 which treats promissory notes and bills of exchange.

These are all of your forms of money, and these heavily impinge on the currency. Those heads of power which are assigned to the Commonwealth, in conjunction with section 115 of the Constitution

which treats States' rights, and that brings in

this whole legal tender question.

HIS HONOUR: Basically, and you can develop this - - -

MR SKYRING: Yes, that is what I have done previously.

HIS HONOUR:  Basically, you say that the issue of paper

money as legal tender is invalid, constitutionally

invalid?

MR SKYRING: Strictly, yes. Now, I have broached this

matter in 1985 before Justice Deane, which judgment

I have had cited and cited against me ever since.

HIS HONOUR:	Yes.
MR SKYRING:	There is a procedural point in that, which I

have pointed up and I have never been able to make

stick, is that although I did attempt to serve the

summons it was a matter of whether I served it

properly. I went basically through the A-G's

office up here, because I had made that approach

work previously, and I presumed it would work

again. The fact was that nobody from the other

Skyring(l6) 29/6/94

side fronted in the court as they should have, in

that hearing before Justice Deane. So, he was put

in quite a bind as to how to deal with the matter,

and he got out of it all quite well, in that he

dealt with it ex parte because I was there. I

believe he sized up my side of the argument
remarkably well, but then he jumped and gave those

conclusions, which have formed the basis for

everybody's action ever since.

Now, on my view, those conclusions do not

follow from the argument that was presented. The

other side should have put the bit inbetween to

demonstrate where I was wrong - - -

HIS HONOUR: Well, Mr Skyring, you appealed against

Justice Deane's judgment.

MR SKYRING: Yes, but again, it was an extremely brief

appeal, and - - -

HIS HONOUR: But, you lost the appeal.

MR SKYRING:  Yes, but that appeal was an extremely ambiguous

wording of just what that appeal meant, and this is

the difficulty. My view is that because the thing

was never ever argued properly in the first

instance, yet has been used as though it had been

properly argued, the net effect is to show up that
it is, in fact, wrong, is the situation that we

have now, wherein we have this enormous conflict in respect of just what actually does constitute legal

tender. It is that point that I believe is wrong.

Now, the form of the proceedings that I am

seeking to get underway here is, basically, to

bring in the proper authorities who should have a

say on this.	I am the proverbial meat in the
sandwich, so to speak.	On the two previous

occasions, as I understand it, it was actually the

counsel for the State of New South Wales and

counsel for the Commonwealth who did actually
appear in 1932 in the Banking case.	I am not
exactly sure who appeared there.	I think, as I

understand, the action was actually brought by the
National Bank challenging the nationalization

provisions.

Now, because of the way that case was

attacked, and they were proper authorities

basically bringing the actions, in fact the point

that was never queried, and which I believe should

be queried, was, firstly, the right of the banks to

create money at first instance, because that is the

sovereign right of the Crown and then to go on, and

for their right to charge interest. This is

presumed as being proper and correct, so how does

Skyring(16) 6 29/6/94

one tackle that one? Well, this is where, I think,

it is not improper to make use of the amalgamation

between the ecclesiastical courts and the common

law courts that happened in the UK back in the

1600s, in that there is a very real sense in which this Court is seen to be the moral custodian, if I may use those terms.

So that, following this line through, if one

then brings in the good book on which all those are

sworn before this Court for when that approach is

used, and particular reference is made to

Deuteronomy, Chapter 15, a couple of very

interesting questions arise. Reference is made to

the chosen people who may lend but shall not

borrow, but the interesting point is that there

shall be a release after "seven years", no matter

what. The other very interesting point, there is

no mention in the concordance of interest. So what

then is the ultimate basis for the practice which

is widely accepted through the financial community

of loans that go on indefinitely, and interest that

can be charged at what were, in former times,

regarded as usurious rates. My own view - - -

HIS HONOUR: Well, it is certainly not Deuteronomy as the

basis.

MR SKYRING: Well, whatever, but that is my point. It is a

not insignificant fact that it is these Hebrew
gents, as I have referred to, who are one way or

another involved with this whole of this banking

practice and this goes back a very, very long way.

Their practice would appear to be very clearly at
odds with the words in the good book, as we.are

understood and as we are led to believe, is in fact

the basis of the operation. So the question I am

putting, and this is the one which really needs to
be answered because it is a very hot topic at the

moment - interest rates are going to go up and they

are already moving up at behest of the banks - what

is the ultimate authority for that action, indeed	for their creation of credit by book entry, which	is in fact what happens and which is what Abraham
Lincoln was on to way back in the 1860s. He saw
how the thing could be set up. Indeed, it is what
he formulated then is in fact what I am about now.
I believe the place has moved on sufficiently.
There is sufficient experience gained. We now have
the technical capability to be able to do things
properly but there is this crucial practice that
dates back centuries that needs to be formerly questioned. If it cannot be properly substantiated then it needs to be set aside and a proper
procedure put in train for the organizing, not only
of this nation's affairs, but if we as a nation

Skyring(l6) 29/6/94

were to make a move I believe we would lead the way

for the rest of the world.

As a somewhat lighter aside in regard to that

term of phrase which is currently doing the rounds,

there is another aspect that if one cares to take down a topical version, interesting things happen

in that particular region of the body. Things also

begin there. If they do not function properly it

can cause great anguish for the whole of the body.

So being geographically located as we are, if we

function properly, then we can help the rest of the

world. Indeed, in a much broader sense, that is
what I am about but I of myself cannot do it. All

I can do, which is what I am seeking to do, is to

be a catalyst to formerly bring in others who are

in the positions of authority and who have the

authority to be able to determine these things and,

indeed, who should determine them. But it seems

that, of themselves, they cannot seem to get

underway, so I seek to do it.

HIS HONOUR:  The trouble is, Mr Skyring, and it is the

trouble which I have in accepting what you say, is that there is a decision of the Full Court against

you on these matters.

MR SKYRING: Yes, but I would make the point to,

Your Honour - - -

HIS HONOUR:  You see, I am bound by what the Full Court has

said.

MR SKYRING:  Okay, but the point is that I would point up to

you, Your Honour, that that was an incompletely

argued case. While there is a decision, I am not

disputing that, what I am saying is that that

decision is incomplete and because of the way the

matter was argued at the time the other side did

not front to present an argument.	Now they
come - - -

HIS HONOUR:  I am merely pointing out to you I am bound by

that decision.

MR SKYRING:  I would put the question to you, (a), while

there is the - for procedural stability I take the

point that you make, in this instance, there is a

very grave wrong here which really needs to be

sorted out. I would have thought and hoped that in

fact it is possible, with these shortcomings, that

given the nature of what is in issue, that a single

judge can, of himself, quite properly act where

major things are shown to be wrong, which they are.

It was very clear. There can be no doubt about

that and it manifests in the day to day effects,

not only on me personally, but there is a whole lot

Skyring(16) 29/6/94

of other things that concern a whole lot of other

people and therefore it seems to me that this is a

proper way for it to be for things to be moved.

I suppose if you see that you cannot, then I

guess the only way I can go an get it is to

basically appeal this decision then to the

Full Court.

HIS HONOUR:  You can do that, of course.

MR SKYRING: All right, the process has to be started, that

is all, and I have to come before a single judge as

I understand it - - -

HIS HONOUR:	Yes.
MR SKYRING:	- - - just to get the show rolling.  If that is

what you have got to do, well, okay, so be it, I

guess everybody is happy that way and then the

formal process has been done. I just feel I must

move and whatever has got to be done, well so be

it, Your Honour. That is basically all I want to

say.

HIS HONOUR:  Thank you, Mr Skyring. You still have not run

out of your time and you have not addressed the

question of the validity of those acts. The

argument is basically the same, is it?

MR SKYRING:  In essence I am saying, yes, Your Honour. The

point that I have made in my submissions which I

was not aware of when I first fronted Justice Deane

back in 1985, was a marvelous little observation in

Quick and Garran on article 178 talking about the powers of the Commonwealth on this legal tender

subject wherein they made the point, "but if a

State were to endeavour to compel a person to

accept anything but gold or silver as a legal
tender then the person aggrieved could appeal to

the courts of the Commonwealth for relief".

Very clearly, what is happening to me now, and

this is what has precipitated these efforts from

••••• , I am really being coerced, as I see it, from

State level, to accept something other than gold or

silver as a legal tender. The general tenor of

that basically confirms completely the argument as

Justice Deane summarized me back in 1985, but there

is nothing being advanced from the other side to

either rebut me then, or as I have put it, I have

sought to get up in argument since to now rebut

Quick and Garran. Those particular provisions of

the Constitution are still relevant because there

has been no change made by the prescribed manner

set out in section 128 as to how the Constitution

should be changed. So if it has been changed

Skyring(l6) 29/6/94

de facto then there is basically no de jure basis

for it being done, and that is what I am up tight

about.

HIS HONOUR: Yes, I follow.

MR SKYRING:  It is not so much what - Justice Deane on my

own argument, we now get back then to the earlier

efforts of again, what I believe was a quite wrong

interpretation of the first Chief Justice,

Sir Samuel Griffith, in Chia Gee v Martin on the

matter of Magna Carta. Because the case was lost
the Magna Carta was mentioned, Magna Carta in

effect, has been downgraded as a basis for action, yet it underpins the whole basis of operation as a

series of judgments over the years from this Court.

in fact confirm that it is still there. So, in

essence, I am -

HIS HONOUR:  That is the argument as to costs you want to

raise, is it?

MR SKYRING:  That comes in on the matter of costs as well.

This really vitally affects the whole operation of

the courts themselves, because how, as I have said

in my affidavits, .•... somewhat upset if the courts
cannot get their own house in order, what hope is

there for the rest of society. If the courts were

to move on the sort of effort that Abe Lincoln was

about, then you have the answer to your problem.

It is completely in accordance with Magna Carta and

the whole place ties together quite magnificently.

That is what I understood the law of this land was.

HIS HONOUR:	Yes.
MR SKYRING:	It would appear to be that, well certainly, there is a lot of decisions around that would
appear to lead one to the conclusion that it is not
so, so further argument - look, there needs to be a
statement, what is the ultimate basis of the law of
Rights. My understanding of the history is that we
this land? They say we do not have a Bill of
have two quite magnificent ones, namely Magna Carta
and the Bill of Rights of 1689 which is part of our
inheritance, it underpins the entire operation, so
why is it not formerly stated at a very high level,
this is the basis and any statutes which are at
odds with this are invalid of necessity.
It is an enormous thing but it all comes back and it focuses very simply on this matter of what
is legal tender in this country and it is the
sovereign right of the Crown the creation of money
in all of its forms that is the crucial effort. My
effort is to get that right restored back to the
Crown that it can act with the advice and the

Skyring(l6) 10 29/6/94

consent of Parliament, which is the legislature,

which is the representative of the people, and that

is what I seek to have implemented.

HIS HONOUR:  Yes, thank you, Mr Skyring.

On 27 August 1992 Toohey J. ordered pursuant

to Order 63, rule 6(1) that the applicant,

Mr Skyring:

proceeding in the Court other than an appeal

"not, without the leave of the Court or a

against this order."

His appeal to the Full Court against that order was dismissed. The decision of Toohey J. is reported·

in Jones v Skyring (1992) 66 ALJR 810 at page 814;

109 ALR 303 at page 312. The decision of the

Full Court is unreported and is dated 1 July 1993.

By a summons dated 22 June 1994 Mr Skyring has

applied for an order that leave be granted pursuant

to Order 63, rule 6 to commence proceedings for

prerogative relief in relation to a number of

matters. Order 63, rule 6(2) provides that:

"Leave shall not be given under this rule

unless the Court or a Justice is satisfied

that the proceedings are not an abuse of the

process of the Court and that there is a prima

facie ground for the proceedings."

The proceedings which the applicant,

Mr Skyring, wishes to commence are by way of a

summons seeking writs of certiorari to quash

decisions adverse to the applicant. Those

decisions are contained first in a judgment of

Spender J. of the Federal Court of Australia in

Skyring v Telecom Australia, dated

18 February 1994. Secondly, there is an order made

on 17 December 1990 by Dowsett J. of the Supreme

Court of Queensland in Skyring v Australia and New	Zealand Banking Group Ltd, in respect of which the
Court of Appeal refused the applicant an extension
of time to appeal because, in its view, the appeal
had no prospect of success. That decision of the
Court of Appeal is unreported but is dated
12 May 1994. And lastly, there is a decision of
the Queensland Court of Appeal in Skyring v
Commissioner of Taxation which is also unreported
but is dated 25 March 1993.
In all these matters, apart from the ground which I will mention in a moment, the applicant's
argument has relied on the proposition that it is beyond the power of the Commonwealth Parliament to

Skyring(16) 11 29/6/94

legislate to make paper money legal tender. This

in essence is the same argument as that put by the

applicant in Re Skyring's Application (No 2) (1985)

59 ALJR 561, which was rejected by Deane J. His

judgment was confirmed on appeal by the Full Court.

The judgment of the Full Court is unreported but is dated 9 July 1985. The matter was concluded in the

view of the Court by sections 5l(xii) and 5l(xiii)

of the Constitution and section 36(1) of the

Reserve Bank Act 1959 (Cth). (See also Skyring v

Australia and New Zealand Banking Group Ltd which

is the unreported judgment of the Court of Appeal

of Queensland dated 12 May 1994.) It would, in my

view, be an abuse of process to allow the applicant

to relitigate a matter which has already been

decided adversely to him. Accordingly, I would not

grant leave under Order 63, rule 6(2) to issue

proceedings challenging the decisions on this

ground.

The only other matter raised by the applicant

in the courts below was an argument as to costs

which he put in his application for an extension of

time to appeal against the order of Dowsett J. in

Skyring v Australia and New Zealand Banking Group

Ltd. There he argued that the trial judge erred in

awarding costs against him as the unsuccessful

party to the action.	He submitted that such an
order was inconsistent with Magna Carta.	I do not

think that there is any inconsistency between Magna Carta and an award of costs against an unsuccessful

litigant. But even if there were, it is clear that

a subsequent statute can displace Magna Carta: see

Chia Gee v Martin (1905) 3 CLR 649 at 653; Re

Cusack (1985) 66 ALR 93 at 95. Under section 58 of

the Supreme Court Act 1867, the Supreme Court has

power to award costs: that power is governed by

the Supreme Court Rules, Order 91, rule 1.

Accordingly, Dowsett J. clearly had power to make

an award for costs and there is no prima facie

ground on which to challenge his order. I would

also refuse leave under Order 63, rule 6(2) to

issue proceedings to challenge on this ground the

decision of Dowsett J. or the Full Court in Skyring

v Australia and New Zealand Banking Group Ltd.

The proceedings which the applicant wishes to

issue also seek orders quashing in whole or in part the Telecommunications Act 1975 (Cth) (that Act has been repealed and is now replaced by the

Telecommunications Act 1991 (Cth)), the Currency

Act 1965 (Cth), the Reserve Bank Act 1959 (Cth),
the Banking Act 1959 (Cth), the Income Tax
Assessment Act 1936 (Cth) and the Commonwealth

Electoral Act 1918 (Cth). Even if prerogative

relief were appropriate for this purpose, the only

ground put forward by the applicant is the alleged

Skyring(l6) 12 29/6/94

invalidity of paper money as legal tender. As I

have said this issue has been concluded against the

applicant. In the absence of any other ground, the

applicant has failed to establish a prima facie

ground for this aspect of the proceedings.

The application for leave to begin proceedings under Order 63, rule 6(2) is refused.

There is nothing else, is there, Mr Skyring?

MR SKYRING: I think you have covered most of it there,

Your Honour, not quite in the way I had	hoped but I
guess that is the way it has got to be.	Right,
Your Honour, thank you.

HIS HONOUR: Very well, I will leave the bench now.

AT 9.29 AM THE MATTER WAS ADJOURNED SINE DIE

Skyring(l6) 13 29/6/94