Skyring, In the matter of an

[1990] HCATrans 114

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~

JA

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IN THE HIGH COURT OF AUSTRALIA

In the matter of -

An application for waiver

of filing fees by

ALAN GEORGE SKYRING

GAUDRON J

(In Chambers)

Skyring(9)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 17 MAY 1990, AT 10.20 AM

Copyright in the High Court of Australia

SlTl/1/RB 1 17/5/90

MR A.G. SKYRING:  Good morning, Your Honour. I take it you

have the documentation which I had submitted which
was the petition itself which is really the main

item which I am seeking to have formally put into

the system but because of the nature of the cause

for action in the petition, if I am to be consistent

with my argument there, I finn myself in a small

problem in respect of payment of the

requisite fees in order to put the petition in. So, I

am really caught in a catch-22-type situation and

it seems to me that somebody formal ought to have a

say on how this gets dealt with which is really

what has brought on the action.

HER HONOUR:  But, Mr Skyring, that would put the Court in a

catch-22 situation too, would it not?

MR SKYRING:  Well, no. Actually, by a bit of rather sporting action on

nicely, and that particular approach had not occurred to me, namely, my recourse to legal aid.

the part of the people of the Attorney-General's very

Although I did try back in 1983 when I first started

this whole effort - I tried nine times and I got knocked

back every time. So, it never occurred to me. But

there is a situation now where I see that that can be

brought in.

But any way, to get down to business, what I

basically had in mind, Your Honour, was - I would

take it that you have read the petition and the

affidavit and you know basically what, by the formal

document is, I am about?

HER HONOUR:	Yes.
MR SKYRING:	Okay. Well, in the circumstances, what I thought might - because of the nature of the matter,
what I thought I might do, if I may, was to basically
speak to it - I will be brief - to put it in context in
respect of what has gone before, because this action
actually started here in 1985 and it goes back beyond
that.
HER HONOUR:	Yes but, Mr Skyring, do you not have to address the problem as to the waiver of fees?

MR SKYRING: Right, okay. That is the irmnediate problem but

there is no problem about that.

HIS HONOUR: Well, is there not?

MR SKYRING: Well, okay, I will start off with that but I thought

just because of the nature of the petition itself - - -

HER HONOUR:	Very well, I will not interrupt you.
MR SKYRING:	- - - to get the whole thing up. Well, if I come

in - in short, why this question of fees now becomes

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a problem, if I can lead with that but sort of put

it in context in respect of what I wanted to do.

I originally started this effort using the writ of

certiorari seeing that as a mechanism where I could

address the problem overall in respect to having a

statement of the problem made, a statement of the

solution and a formal directive that will allow

implementation to be put in train all in one hit.

Now, I, not being a lawyer, thought my sort of reading of the history of the writ of certiorari

plus what I had read of the law books, I thought it

would have been understood what I was about but what

I was to find much to my horror as the action went

on, I was in a territory where I was trying to do

things that seemed to me, from my reading of history

to have been long forgotten about. So, in essence,

was has happened over a period of about - well,
from 1985. There was the statement of the problem
which was originally done quite magnificently by

Justice Deane, albeit negatively. We moved on -

then there was a restatement to sharpen the problem,

moving on to the form of resolution, then 1987, 1988,

1989, going on from resolution to implementation

to bring the thing out into society at large so that

everybody can get their two-penn'orth in on the act,

so to speak.

Now, I have been using the prerogative writs,

in particular, certiorari, because the senior clerk
in the registry in the Supreme Court in Brisbane

casually said to me one day, "You can do anything

with certiorari, so long as you say what you want to

do" and I took him literally at his word. Now, in

the course of the hearings, there were three points

that I got from various Full Bench judgments; (a) I was not precise enough in respect of what I was

about; (b) - the second one escapes me at the moment.

The third point was that I needed to use forms which, in effect - or more traditional forms which the

Court could cope with. That was the last judgment

of Justice Brennan when I sought a removal in 1989.

Now, it had not sort of dawned 9n me up until this time that by using certiorari in the way I was

doing it which was in its pristine form, it occurred

to me I was getting into an area where we were
talking of the reserve powers of the Crown in an

environment where there is a lot of republicanism

and I could see that that could pose problems for

the courm to do it, what I had in mind. So, doing

a complete recast of my thinking and also taking a cue which had been given to me, in effect, from the

Federal Attorney-General's Department, because of
the nature of the matter, I needed to handle it more
politically than legally. It seemed to me that I had

to get into the political arena somehow but because

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of the nature of the matter, it seems to me that the
courts had to be involved because, in order to make
the thing fire politically, it seems to me there is

a need for a judicial statement to define a few terms which are rather woolly and then the place can really

take off. So, by coming in at the petition, as I now

have, what I have done is to raise matters financial

in the political arena but to bring it formally before

the courts where the role simply required of the courts

is their strict judicial role which is the

interpretation of statutes basically relying on the

plain meaning rule, so although we get into a highly

politic matter, I am not asking the courts in any way

to legislate which is the thing that has become

very clear to me will not be done, and that is fair

enough.

The point that I have actually raised - which

if I speak to the petition now just to sort of - was the form of currency or the form of payment.

This, all of a sudden, becomes very, very important.
Now, although the subject has been skated around

in the previous hearings, the effect now is to home

in very specifically on form of payment in the

light of a judgment that I got from Justice MacPherson

in 1983 in the supreme court when he did the first

statement of the case which got it into a tractable

problem although it was still quite a large one. Now,

it was his statement which is in the affidavit which

I put in which is the one that I am specifically

speaking to now. It is about item - no it is the

petition, that is where I think I stated it. Yes,

item 5 of the petition where he laid it on the line

very, very clearly there in respect of the form of

payment and what constitutes legal tender.

Now, there has been two approaches that I have

taken to this general problem. Early on I took

issue with the point that he made there talking

about section 115:

which creates simply a prohibition against

the issuing of currency by State governments.

Okay, that is the given legal wisdom which, in effect,

relates to the first part of section 115. See, it

says:

A State shall not coin money, nor make

anything but gold and silver coin a legal

tender in payment of debts.

Now, the margin note says, "State shall not coin

money" which relates to the first part but it is the

second bit which I am interested in which is "nor

make anything but gold and silver coin a legal
tender in payment of debts", and what that "make"

means because this becomes very important - there was

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a like case - three actions in 1932 before this

Court that was to lead to the downfall of the Lange

administration on what "make" meant in section l0S(a)

so it is the same problem.

Now, I chased the whole history through to

show, in effect, the nature of the fraud that is in

the system, how it all came about, what can be done

to fix it, which is what was very conveniently worked

up by certiorari over the intervening years. Now,

in effect, what I was angling for was a judicial

determination, in effect, of what that "make" means

which - now, it is an interpretation of the

CONSTITUTION. That is a Full Bench job which a

single Judge cannot do.

So, having, in effect, made that point in 1985/1986

to show how that asts as a secondary constraint,

we then, in effect, moved on to seek to correct
the system. Now, at that stage I was still trying

to use certiorari and while it was convenient to work

as a mechanism to allow the argument to be put to

the Court, to go further than that got a bit sticky.

So, what I have done now is to revert now back to -

in effect, coming back to this judgment again but what

I am doing this time is to take a very simple

interpretation which makes the Court's job very,

very simple on this one. I am, in effect, asking

for a narrow interpretation, if you like, in

terms of the plain meaning rule and, indeed, what

Justice MacPherson said there, in effect, in respect

of his first sentence and his final sentence in that

extract that I quoted in item 5. Now, although this

was given in a State supreme court and, in effect,

we are talking a State matter because we are talking

payment within the State of Queensland. So, there

is a nice jurisditional problem comes in here but

I mention this in passing because from what I can see

of the High Court Rules nothing is said specifically

about money but in Order lA in the State Supreme Court

Rules they are very precise - talk about the CURRENCY ACT

and I presume that is where Justice MacPherson got his

statement - was the basis for his statement in that

extract that I have given there.

Now, the point I am putting here which is where

the problem comes in respect to the payment of fees

which is what this hearing is really all about - now,

what he says here:

the law governing discharge of obligations

is determined by the CURRENCY ACT 1965,

s.16 of which prescribes what is legal

tender in _Australia. That Act binds me.

So he is pinning down then: legal tender is

section 16 of the CURRENCY ACT.	Then it goes on to the
final bit:

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no problem will arise in relation

although that was payment of tax and I have now moved

around to the payment of costs because it is the same

argument. If I tender:

a sufficient number of notes and coins

constituting legal tender within s.16 of

the CURRENCY ACT -

now, this is where the problem arises because, as I

said in the following item in that petition, in fact,

section 16 of the CURRENCY ACT does not make any

reference whatsoever to notes. Indeed, they are

outlawed under section 22 and this is where the very
awkward situation comes in in respect of making
payments in a strictly legal manner.

Now, what I am contending is - and the facts

of the matter are borne out in the exhibits to that
affidavit, in exhibit A and in exhibit B where I

give the relevant extracts from the Act, a bit of the State Supreme Court Rules. We have this very

awkward situation which has come about as a result

of interraction of a lot of people over a long

period of time where, in essence, the Queen's money,

ie our gold coin which is specifically what is referred

to in section 16 of the CURRENCY ACT - and if you have

a look at exhibit BI have given the extract of the

Act there. That was the item that Mr Justice MacPherson was referring to, as amended. There is the schedule

that goes with it and then there is exclusion under

section 22.

Okay, now what I have given in exhibit Bis

the statutes - the relevant statute and there is an

extract from the State Supreme Court Rules behind

it where they talk about money and CURRENCY ACT and

to be construed in terms of the CURRENCY ACT. So,

if we are talking legal tender, we are talking of the CURRENCY ACT and the CURRENCY ACT talks about

gold coin. Now, while I will haggle about the smaller

denominations, they use cupro-nickel which strictly should

be silver but that is a small issue at the moment.

It is the major items I am trying to deal with

because of the amount of this sum. And we have that

ad put out by GoldCorp about these gold nuggets

which was, in fact, what I used and it is those

items which are the subject of the receipts in

exhibit A.

Tl	Now, this is where a bit of sleight of hand comes in and what amounts to a fraud, looked at in the
broad sense, but it has come about because of the
nature of a series of rulings that have been given
over a period of time and what we have got is this
absurd situation. Now, as I see it, what this gives
then is a reductio ad absurdum type proof, to say,

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"Well, look, what we've said before isn't right,

we've got it wrong, so we've got to go back and

we've got to do a rethink and there's a whole lot

of things that have got to be recast." Now, by

bringing the thing up into the political arena as

I have done with payment of nomination fees for

elections, what the effect of this action is to

indicate that the lawmakers, the politicians who

are supposed to give us consistent laws as I understand

it, really do not understand what they'are talking

about and this is evidence of it. Now, I have tried

to play the rules strictly straight, given judicial

guidance by Justice MacPherson. Now, everybody else

has played along with cormnon knowledge, so, you

know, the presumption that what is there must be

right.

Now, it is this very deep-seated problem which

is the one that I am really trying to address and

in order to correct this, it involves quite a

shake up right across society. This is the sort

of thing that I can appreciate everybody shies

away from but we have real problems and somebody has

to bite the bullet. Now, what I am trying to do is, in complementary action to this action here,
to get other action up in other places which will

allow the matter to be brought up formally in public

debate so that it can really be raised fairly and

squarely and with the Court taking a hand to guide

things behind the scenes.

The point having been made in respect of the

nomination fee to show up the gross inconsistency

which is of a sort which really cannot be tolerated.

It has got by because people have not focused on

what the problem is. Now, there was an earlier

judgment by - the name of the judge escapes me - in

1981, talking about manifest absurdity. "An absurdity

is to be accepted unless there is an acceptable

alternative available." Now, I believe there is an

acceptable alternative available.	The problem is
that this is not cormnonly perceived. Everybody who

has a say in the public arena has their say on a

fairly narrow base and what we have got is a whole lot

of tunnel vision type thing where the tunnels do not

meet up. I am trying to cut right across this.

Now, to come to the point specifically which

is what I think will provide the out: what had been

suggested to me was, in fact, that I have recourse

to legal aid. Now, I did raise this matter with

the Attorney-General's Department in Brisbane and I

gave them a full set of the documentation as I had

filed it with the Registry at the day that I filed

it; (a) for their information and, (b) as

an indication that I was going to bite him for this

matter - or raise with them this matter about payment

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Skyr ing (9)

of fees, who rightly should pay, and because

of the problem, how I was going to do it

strictly legally and be consistent with the

stance that I have taken. Now, the upshot of it

was that they came back to me with a set of

documentation, in effect, where, if I made

application to the Attorney-General's Department

specifically to have the matter treated as a public

interest and test case coupled with the special

circumstances schemes, then this is one which the

Attorney-General then could say, "Well, yes, okay,

we will take a hand in this." Now, if they take

it over then, in essence, this basically solves

the problem so far as the immediate problem

goes because what it means is - and this is what

I was hoping that you might be able to direct,

under item 3 of the items I was seeking in my

summons where I had stated basically what I was about - that if, in fact, the matter were to be

taken over, in effect, by the Attorney-General

under this legal aid scheme - there is a set of

documentation I have got here if I could hand up

to you, Your Honour.

HER HONOUR:	Yes, thank you.
MR SKYRING:	The first two pages are the covering letter and

the follow-up is how I filled it in. If Your Honour

would have a quick look at it.

HER HONOUR:  But what, really, has this got to do with me?

MR SKYRING: Well, what I am saying is that there were three

points that I was seeking declarations as I have

stated them in my summons on this particular effort

which is what the chamber summons was about. I am

coming back to the point specifically which it

asks me to address. Item 1 was that I am seeking

waiver of payment of fees by me out of my own

pocket.

HER HONOUR:	Yes but the principles on which that are granted are usually firstly that the applicant is without
means and, secondly, that there is prima facie a
matter to be litigated.

MR SKYRING: Right, okay. Well, certainly I am sailing very

close to the wind in respect of the first matter.

I dared to do battle with the Tax Commissioner

and, as the saying goes, I had the vacuum cleaner

put through me by the official receiver. Because I

would not pay, the presumption was that I was

bankrupt and, in fact, the Commonwealth instituted

bankruptcy proceedings against me.	Now, certainly,
I am sailing close to the wind.	The only claims

that I have not paid though is this income tax

because I am saying, (a) the whole case is fraudulent anyway, that they got to that stage they did by abuse of

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process and, secondly, of course, we come back to

this argument which is what I have now moved into

the political arena, again, following on from what

Justice MacPherson, "Okay, payment in the Queen's

money" which I tried to do and I could not get any

and that is how I got hung up.

Now, as I understand bankruptcy, it is if you

cannot pay claims made against you when they come

due. Now, I pay everybody else but I refuse to pay

that one as a matter of principle because I believe

it is wrong in law. Now, the situation that I am

caught in is one which was covered very nicely in

a public statement in a case which was heard before

the Full Bench of the High Court fairly recently in

respect of an award which was being challenged and

I think it was Justice Brennan who made the point

about how an employer could be convicted under an

unquashed statute purported to be constitionally

invalid. Now, that is precisely the situation, as I

see it, that I am in in this particular case.

HER HONOUR:	What rule do you come under?
MR SKYRING:	Okay.  Now, what has precipitated this: under

Order 72 of the High Court Rules, the

Registrar is required to take fees where they are

nominated. It is Order 72, rule 8 - very, very clear.

The fees and charges set forth -

now, there is about 300 bucks

HER HONOUR:  Yes. Now, what establishes the fees?

MR SKYRING:  There is a scale of charges which, I gather, comes

in as a schedule in this book of rules and there is

an updated version which the senior clerk in the

registry in Brisbane certainly had and he quoted

from that to say the filing fee was about 300 bucks,

was about 100 bucks security deposit was required. I think it is these days, for a petition and there

HER HONOUR:  Do you know where they came from?

MR SKYRING: Well, that would have been set - there is a

schedule of scale of charges which, I gather, would

come as a form to the back of this - in the back of

the rules. I have seen a scale of fees. They do

keep updating it. I just sort of took it as read.

It has been fairly modest until - yes, the Third

Schedule, page 297, that is in the original scale

of fees. Now, they are quite modest numbers there

but the whole thing has been UJ:graded and it is

getting quite nasty now. So, it is the updated

version of the fees as set out in that Third Schedule

which is what the Registrar is required to take

under Order 72 rule 8.

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HER HONOUR: Well, you see, I am just wondering about that,

Mr Skyring.	I do not know that I am sitting here
today as the	High Court at all. I am sitting as
the Court of	Disputed Returns.

MR SKYRING: All right. Well, okay - - -

HER HONOUR: What are the procedures about filing in the Court

of Disputed Returns?

THE DEPUTY REGISTRARY:  As I understand it, we still take the

fee.

MR SKYRING:	That is what brought it on.
HER HONOUR:	Yes.  But where are the rules as to the

initiation of proceedings in the - - -

MR SKYRING: Order 68, I think it is, on the - Order 68, I

think, is the ·)ne which - I have seen it in here -

where they talK about the High Court sitting as

the Court of Disputed Returns. I think it is 68.

HER HONOUR:	Yes.
MR SKYRING:	"Election Petitions", here we are, 68. Now,

they say there how it shall be set up. That

basically sets it out. Yes, part of it is set

out in the ELECTORAL ACT and then there is a

complementary bit in the High Court Rules.

HER HONOUR:  Thank you. Well now, that was what was concerning

me.

MR SKYRING: Right.

HER HONOUR: What point is served by remitting the fees, we

will say, or waiving the fees because you will then have to have the petition published in a newspaper.

Now, how are you - - -

MR SKYRING: Well, that was really what I was seeking to have

done by my sununons, the way it was framed because

it was not only in respect of the waiver of the

fees. The way I had framed it was, r1all costs

and charges" - - -

HER HONOUR: Well, where do I get power to do that? I do not

have power to waive all costs and charges.

MR SKYRING:  Okay. Well, that is where this effort about

legal aid comes in as I see it. You see, the problem,

looking at the picture overall - - -

HER HONOUR:	Have you applied for legal aid?
MR SKYRING:	Yes, that is what that application form is that

I handed up. That was what they gave me in the A-G's

Department. I filled it in on the spot. Now, what

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in fact, happened was that they sent it down to

Canberra. There was a response came back to me

by fax just before I left saying that it was there and they wanted a five buck fee for me to get that

out of the system. Now, again, I took up this matter

of payment of that five bucks, again, to be consistent

and, again, I dig my heels in on this CURRENCY ACT

that, okay, although that is small denomination

coinage, again, if we look at the CURRENCY ACT,

on those sort of numbers - I could do it with

some of these brass arrangements - now, the point

is again, taking the broad issue, while I have been
haggling over the large items in respect of gold

coin, I also take issue with the details of the

statutes in respect of the small denomination

coinage in respect of what the CONSTITUTION is about,

because they are talking about gold and silver. Now,

the small denomination coinage, if you have a look

in the schedule, is cupro-nickel which is debasing

the currency.

Now, I am being very fussy about this because -

the reason for it being that there is an interaction

between the Crown which operates the mints, and

there is Crown control of money in all its forms

and what has happened, just broadly: because of

treaty obligations that have been entered into

where we have given certain undertakings that

the local statute shall be passed here to line us

up with what is going on abroad, it is because of

this that we get this section 36(1) in the RESERVE

BANK ACT calling paper instruments legal tender.

Now, it is the role of the banks which are

private instrumentalities, in respect to creation

of money.	Now, again, it is not just the notes
per se.	It is this whole matter of the way the

accounts are kept and money in the broader sense

which becomes involved in this and what has happened

is that, in essence, the second most sacred right of

the Crown is passed into private hands with

devastating effects and it is, basically, which

is causing all of our problems.

Now, I have gone for that lot because that is

the major item of concern and if the Crown were to

retake back its due right, then a whole lot of

problems can be solved and this is really what I am

about. Now, I had left the small denomination

stuff go while I was arguing the big one but seeing

it has come up now, I will take issue with that as

well. And what I am saying is that those provisions

of the CURRENCY ACT relating to small denomination

coinage which are in that extract that I gave you,

I say, are outside the CONSTITUTION as

well.

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MR SKYRING (continuing):  So again, I am taking the stand to

be consistent.	I cannot break ranks otherwise my
whole case falls apart.	So I am in the position

then that I could not get from the advice that was

sent up to me by fax, so I do not know what, in fact,

has been said. Now, I let this be known to the

Attorney-General's office in town and again nobody sort of felt they could do anything.

So here we have another lock out where, in

essence, due process is being - well, quite literally
aborted because of want of the means to effect

payment in a proper manner. Now, the presumption

that underlies all law, which is what all the society

is operating on, is that the present order is correct.

Now, I am saying it is not correct. There are holes

there you could drive a battleship through and it is

those holes which need to be fixed up.

That was the sequel to that documentation that

you have in your hands in respect of what they

actually said, but there is a higher issue that

comes into this which comes back to the subject-

matter of the petition and that is that although I am taking issue with John Moore, because he was in the electorate and my innnediate concern is with the

electorate of Ryan, the principle is quite general

because if, in fact - and as I believe should happen -

John Moore is unable to substantiate his case - which

I do not believe he can - then neither can any other of the elected members in the House, which includes

the Attorney-General. No doubt he would have paid by

paper money in one form or another because nobody

makes a fuss about this gold coin.	So, in effect, he
is not properly nominated.

Now, okay, again this is this - I am stuck in

this unquashed statutes but purported to be

constitutionally invalid. So if we wish to take a

really hard line on them, which I believe was quite

proper to take, okay we have an Attorney-General who

has been sworn in, who is presumed to have been

nominated properly, so the whole process has worked;

he is not properly nominated, therefore, although

it is his decision ultimately to make in respect

to whether legal aid can be given, I do not see that

he can do it strictly legally. Because he is on

thin ice too. So we have a terrible problem.

Now, it seems to me that this is where the short answer - and all I am innnediately seeking is

that instructions be given by someone who is properly

in office to say, well, look if we do this, and this

will allow process to proceed.

HER HONOUR:  What instructions do you want? I mean, the only

power you have invoked is Order 72. It seems the

only one that could be invoked.

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MR SKYRING:	Okay. Yes, that is in respect of the filing fees in this Court.
HER HONOUR:	Yes, but where do you say I have any more power

than that?

MR SKYRING:  The point was made actually by the Crown Solicitor

in this case that I cited before which was reported

in the Australian on 3 May in respect of this

particular statute which was being argued before the

Full Bench then - in the course of this the Crown

Solicitor stated that statutes stay on the books,

in effect, until such time as this Court says they

are invalid. Now, that was a point that was made -

in the third-last paragraph from the bottom. So you

might see what I am arguing, Your Honour, I have a -

there was a submission that I put into E.A.C. which

really takes this matter a great deal further in

respect of the particular - to get the whole issue

up into public debate, which I had in mind to hand up.

I have got a duplicate copy. If I give you this you

could - - -

HER HONOUR:	Yes, but do you understand the questions I put to you, that it seems to me there is absolutely
no purpose served by remitting the fees payable to
this Court if thereafter because of inconsistency
you cannot have the petition advertised.
MR SKYRING:	Okay, that is the point I am seeking to address.

I take your point fully and that is the point I

am seeking to address. This comes back to these -

if you could see the text on this particular exhibit.

We will just sneak up on it in easy stages. It is

the final three paragraphs which are the bits and

bytes. He argued:

that an award was there until the High Court

declared that it was invalid.

Then the final sentence: 

But some of the justices wanted to know

how a person could be convicted of an offence

against an unconstitutional award.

Also the fourth paragraph from the bottom, how he

can be convicted of not abiding by the

provisions of what Justice Brennan said

might be an "unquashed, purported invalid,

award:

Now, I can read for "award" "statutes" and we are

in exactly the situation I am in. Now, what I am

saying is that the provisions - section 36(1) of

the RESERVE BANK ACT - I am contending is a

SlT3/2/RB	13	17/5/90
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constitutionally invalid statute. The items in the

schedule of the CURRENCY ACT covering small

denomination coinage are invalid and we are in the

situation where although I have argued, and in effect

I think it is more or less accepted that they are

invalid because the Full Bench has not yet formally quashed, so we are in this in between situation and

what has happened is that until such time as the

Full Bench actually says, no, that is wrong - and

that is what I have been trying to get up for years -

to get that declaration out of the Full Court, because

once that is done then we can start to solve the

problems.

So we are in this in between situation where

the argument has certainly been put and it really

has not been rebutted anywhere, but it has not been formally quashed, so because of this, we still have

the paper money rattling around purporting to be legal

tender, everybody is taking it to be legal tender and

they say, well why cannot I use that, well, I am

saying because if I am taking the hard line, which is

what I have done in respect of the fees for the

Court and indeed i did with the tax commissioner,

and they were unable to put up an argument to show

where I was wrong, then by following on then the same argument must necessarily apply to any other Crown

instrumentality - and I am particularly horning in on

Crown instrumentalities - because they are part of

the Crown and they, above anybody, must get it right.

Okay, ordinary Joe Blow has to accept what he is

given, so while I am prepared to trade with people

who are not the Crown, I am you know using this funny

stuff, I take strong exception to dealing with any

Crown instrumentality in this particular manner.

Now, publication in this official Government Gazette

is a Crown instrumentality and this is part of the

function of the Crown, that this ought to be able

to be published.	Now, the bigger issue that I am -
the answer that I am trying to get up to say, well,

look, this is how I believe it can be done, that

everybody can get their twopence in on, and then

against the background I believe then the Court could

then quite properly make a decision to resolve the problem and say, look, this is the situation; then

we can solve it.	So that is the big picture I am
trying to - - -

HER HONOUR: But I still do not see how it happens. Your problem

is, is it, that you would pay this Court in gold coin

if you had the money.

MR SKYRING:  If the Crown made it - actually there are two links

in the argument, Your Honour. Presuming that your

claims you make are valid - and I put the heavy

SlT3/3/RB	14	17/5/90
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presumption in - if the Crown made it available to

me, I would pay. No problem. But the other leg of

the argument which is the argument that I put up
against the Tax Commissioner - I challenge the
validity of your claims beca11se there is that interesting
provision of the Great Charter of Liberties which is

what I have argued in this effort which says that to no man shall we sell, defer or deny right or justice which is central to this whole argument and what I

am saying is, in short, if one takes the ordinary

meaning of words, "sell", dictionary definition,

"make over or dispose of in exchange for money". "Money",

first definition, "current coin" and then they go on

to talk about a whole lot of other things.

So, clearly, if cash has to be put on the

counter anywhere in the judicial process, that must
be seen as selling of justice in the ordinary meaning

of words. And that was outlawed way back in 1215,

reinstated in 1225, it has been on the books ever

since and it is part of the inherited law of this land.

Now, because the Crown, through its advisers - now

the Crown can do no wrong - even if things are

wrong, he has acted on wrong advice, which is the

situation - then we have this present set-up wherein

much is said about the denying and delay of justice. Nobody in legal circles ever mentions this matter of

payment because that is a very very touchy question.

If the Crown were to resume its rights, which passed

from its hands wrongfully from what I can see of

chasing back through history with the founding of the

Bank of England, then a whole lot of problems can be

solved and it can all be done by book entry, with

proper budgetry control, through the Parliament, the

requisite amounts can be set aside and using all the

machinery we have in place, payment can be effected in

a strictly manner.

Now, the specific efforts that I am seeking in the bottom line, way way down the track, is okay,

let us have our currency reinstated in terms of the

CURRENCY ACT, because that is money in the traditional

sense - - -

HER HONOUR:  Just deal with what you are seeking today,

Mr Skyring. What you are seeking today is an order

waiving the payment of- - -

MR SKYRING: All charges of whatsoever nature associated with

getting this action - - -

HER HONOUR:  But I have not got that power. You have not shown

me where I have that power.

MR SKYRING:  We are in a situation, Your Honour, where as I see

it ,'.:where in respect of the forms of money, the

S1T3/4/RB	15	17/5/90
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fourth paragraph of that photostat that I gave you

in this last lot, we are in a situation where we have

an unquashed purported invalid statute in respect of

currency. That is the real point that I am saying.

Now, okay, it is not for you as a single Judge, at

this time, to say that is invalid. That is a Full

Court job. What I am looking for is an intermediary

step which will allow process to be properly executed,
in effect, on a short term stopgap measure to get

over what has been the result of an accumulation of

errors over a long period of time and to which I must

sadly say this Court unwittingly has contributed.

HER HONOUR: All I could do is order - direct that a fee not be

taken. That does not solve your problem. Not only

does it not solve your problem, but it seems to me,

Mr Skyring, when you say you take the stand you do

because you have put yourself in a catch-22 situation,

what you seek to do, if you do not comply with the
normal principles relating to this, is to put the

Court in a catch-22 situation where it can be said to have prejudged the issue in your favour.

MR SKYRING:  Not really.

HER HONOUR: Well, that is the way I see it, I must say.

MR SKYRING: There are two - what I am seeking - - -

HER HONOUR: 

If you put it on another basis, that may not

involve the Court in a catch-22 problem, but if you
put it simply on the basis that the Crown should make

available gold coin to you so that you can pay - - -

MR SKYRING: 

It is not me. The point about this - - -

HER HONOUR: Well, to everyone.

MR SKYRING:  That is really what needs to be done. Now, because

we do not have - - -

HER HONOUR:  I know that you say that that is what needs to be

done, but if you put your argument in this Court on

the basis that for consistency sake you cannot or

you will not or you should not pay it, what you are

asking this Court to do is to give prima facie

authentication to your position.	So you put the Court
in a c1tch-22 situation.

MR SKYRING: All right, I see what you are about. Okay, this

brings me back to this matter of legal aid. Now, in

that particular hand up which I put up, the matter is

surely a public interest test case under special

circumstances. The error which I have pointed up

was there for anybody to point up; it is just that

nobody has, so I did, to make the point that, look

S1T3/5/RB	16	SKYRING	17/5/90
Skyring(9)

there is something terribly wrong with the system.

Now that in itself, surely, is sufficient cause for

the Crown, in effect, to take the matter over. I

sought of the Attorney-General's office to do this

spontaneously back in 1983 when the thing started and

they just would not handle it. My view is because

they could not quite see how, you know, what it was

about, what I was trying to get up. So in the

intervening years I have basically done this anyway,

to put everything down on paper, so that we now have

something that we can talk about. And that is

basically what I am seeking to get up.

So again we are in the sitaution, okay, so that

decision resides with the Attorney-General, but

because of this whole lock out sitaution, there is

the matter of his competence, although again the

presumption is again that he is properly in office,
but that gets back to the way he was - because he

sits in the Parliament that is how he gets to be

a minister - he is in the Parliament because he was

elected; he got to be elected because presumably he

was properly nominated.	Which comes back to the form
of payment again.	So what we have got is a situation

where, if we follow that line through, the final

decision in essence rests with a minister of the

Crown who, indeed, may not be properly in office on

account of this lot.

Because the matter involved costs, in effect

what I am asking, I guess the bottom line, is that

because this is a Crown matter as I see it, the

Crown should be doing this itself anyway, I should

not have to do this, if the place was properly
configured. But I have been put in the situation,

on account of it virtually being left to me, to

have carriage of the action when I do not believe

it is rightly mine anyway.	So I really should not
be here rightfully anyway.	But seeing I am, I will

have to do the best I can in the circumstances.

What I am about is - and this is what I

indicated to the Attorney-General's Department - as

I see it what needs to be done is that, okay, an

account be kept in effect of these miscellaneous

charges in order to get this action up. Okay, I

asked this be published; the printers at the

official Gazette say that will cost you a couple

of grand, so somebody within the Crown establishment
has to say, okay, we will take that for the moment,
we will put it on this account, and when the whole

matter is determined then it is like costs that get

carried over to the end of an action - this is an

aspect of costs, if you like, although costs normally

get treated as the immediate lawyer's fees - in this

SlT3/6/RB	17	17/5/90
Skyring(9)

particular one we have got this particular costs

which really need to be done in order to get the

thing up. So I am not actually asking anybody to

judge it at the moment where in so far as we can

use the present practice and this matter of keeping

accounts, that is quite acceptable, the crunch

comes at the end in respect to who pays. But at

the moment really that cannot be properly resolved

until the matter is determined. So without actually

prejudging it, what I am saying is, what I am seeking
really to have done under that third item was that

it be directed that a separate account be set up and

kept by the Attorney-General's Department - - -

HER HONOUR:  Yes, but where do you think I get the power to

make that third point direction?

MR SKYRING:	Because, pending resolution of the constitutional point, Your Honour, this must reside with someone.
Now, the point that we are in, as I see it, I can
fairly take exception to the Attorney-General
making any decisions on this matter. It is an aspect of costs and that is why I have framed item 1 the
way I did, all:

fees or charges, of whatever nature -

Now, this particular special cases scheme under

legal aid would surely cover that sort of thing.

HER HONOUR:  If you were granted legal. aid, you would not need

to make any application to this Court, would you,

about fees?

MR SKYRING:  The point still comes in in respect of - see, it

is a matter of who would rightly make the decision

on that case. Now, they say, the screed that goes

with it, talks about the Attorney-General as having

the final decision. So if he is not properly in

office, then how can he properly make a decision.

So you cannot say that he is properly in office

because otherwise you are prejudging that point also.

This is the awkward situation.	I am sorry to do
this to Your Honour, but that is the problem	I
have endeavoured to - - -

HER HONOUR:  You still have not addressed the problems I have

put to you: firstly, where in the rules am I to

find power to make the order you require in

paragraph 3, and if I do not make that order as you

require in paragraph 3, does it not follow that the

order in paragraph 1, so far as it relates to your

petition, is useless.

MR SKYRING:  No, not necessarily so, because this would get the matter formally into this Court. Now, again, I say

SlT3/7/RB	18	17/5/90
Skyring(9)

we have got this underlying principle about no man

being denied justice or right or sale of justice.

So in order to put the petition into the system at

least by in effect waiving the fees, which is in

accord with this higher level statute which has been

lost sight of about selling of justice, then okay,

that can be , ... at least the Court is clean on that

one and, in fact, you are really getting back to what

the law always has been but it has never been properly

set up because the legislators have not seen how to do

it and they have given you a bad set of rules.

So at least by sorting that leg of it out, at

least the petition can be properly put in the Court

and it can be said then to have been filed.	That is
the first leg of it.	So there is no real hassle
there.	Now, in respect of this publication, was

that in Order 68 where it was - - -

HER HONOUR:	Order 68, yes.
MR SKYRING: - - -talking about the procedure.	I think I saw

it in there about having to be published or if it

was not in there it was in the - that is what

brought the matter up.

THE DEPUTY REGISTRAR: Order 68 rule 3.

MR SKYRING:  I thought it was in there about having to be

published.

The petitioner shall, forthwith after the

filing of a petiton -

(a) publish a copy of the petition in the
Commonwealth Gazette and in the official

Gazette of the State in which the election

was held;

essence that action is required to be taken under	that is where we come in under these rules. So in
these rules. So because of that, 68, and that
would seem to kick over into Order 72 - - -

HIS HONOUR:	I would not have thought so.
MR SKYRING:	If it did not say it in Order 68 then I would not

be talking to the Government Gazette.	I would not
have cause to.

HER HONOUR:	Mr Skyring, I do not read 72 at all to say that I- - -
MR SKYRING:	No, Order 72 rule 6 talks about - yes:

fees and charges set forth	in the .....
Schedule shall ..... be taken

SlT3/8/RB	19	17/5/90
Skyring(9)

all right, that was that schedule,

(c) by the several officers of the Court;

. . . . .

as the case may be.

That Third Schedule basically, in effect, relates-

Okay, so 72 is speaking specifically in respect of

what the Registrar shall do in respect of fees to

the Court. That is specifically the Court's own

housekeeping, if we could use that term. All right, but

now we have this direction - we get into this other

area where particular action is required under these

rules to be taken in much the same way as - okay,

those fees in the Third Schedule which comes back

to Order 72 again, they are covering costs, sort of,

in house, if you like, for the actual operation of the

Court itself .

Coming back to rule 12:

The Court or a Justice may, in a particular

case for special reason, direct -

(a) that a fee shall not be taken, or that part

only shall be taken, or, if taken, that the

whole or a part of the fee be remitted; or

(b) that the payment of the whole or a part

of a fee be postponed until such time, and

upon such conditions, if any, as the Court

or a Justice thinks fit.

Now, is there any tie back in that order 12 that that specifically relates only to order 8?

HER HONOUR:	I would have thought so.
MR SKYRING:	Well where does it say that specifically?
HER HONOUR:

Because we are talking about "fee" and the only

fees with which we are concerned- - -

MR SKYRING:  Order 72, those general rules, the whole section

relates to general rules.

HER HONOUR:  And if you look at the heading of Order 72- - -

MR SKYRING: If we take the lead item:

When a party desires to take a step in

a proceeding, and the manner or form of
procedure is not prescribed by the rules
or practice of the Court, the party may
apply to a Justice for directions.

1(2) Step deemed regular. A step taken in accordance with the directions given by the Justice shall be deemed to be regular and sufficient.

SlT3/9/RB	20	17/5/90
Skyring(9)

All right, so in essence the direction in the

proceedings is in effect set down within these

rules. That is how 68 gets to be there.	So it is
clearly under - 72 is general.	So why can it not

construed - see the step is the proceeding relates -

the whole of this particular item that we are on

about, 68, is about publication. This is a matter
that justice be done or be seen to be done; everybody

knows about it. That is the reason for it. It is

officially published by the Crown so the Crown knows

it has been done and there is no sort of leaving it

to third parties.

So it would seem to me to be right and proper

that, okay, because it is a petition which covers a

matter of public interest, that the form is actually

set down within these rules, see Order 68 rule 3,

very clear. So I do not see then why, to take

para (1) why 12 need only come back to the fees under

order 8. There are fees which go with that although

it is not a case where - when you go to talk to the

Gazette they raise the matter about fees. But the

only reason we go to talk to the Gazette is because

we are directed from here. So I would say in

respect of that one, what I am basically asking is

that it be postponed till, in effect, it is rightly

determined who should pay. I am not denying that

the Government Printer should not be paid, nor indeed

am I denying that the fees for covering of service of

the Court as it sees fit to set should not be paid.

I am not haggling that at all; what I am saying is

that at the moment, because of the peculiar problem

that I have sorted up - see, the presumption is that

it can all be done strictly legally. I think what I

have demonstrated here is that it cannot be done

legally. So what are we going to do? That is really

the problem and this has come about because of the

joint action across society, as I say, to which this

Court, over a period of time, perhaps quite unwittingly,

has contributed. And having contributed, it seems	to me it is right and proper that it ought to make
at least a small step to help get out of the problem. And it can do that under 12(b) by saying that this be
set aside at this moment, that the fee be postponed
to be picked up at the end because the whole matter of costs really needs to be sorted out.

Again, on the present practice, okay, given

that I win the case, then I do not have to pay anyone,
so why should I have to shell out now? Okay, if it

does not get up, and this is really what needs to be

thrashed out, because it seems to me then that if it

does not get up then we have got a gross denial of

reality on the part of a whole lot of people, and

when ycu start denying reality one starts to get lo:)ked

at sideways in res;>ecc of one's competence. They call

SlT3/10/RB	21	17/5/90
Skyring(9)

it schizophrenia in medical circles and if those

sort of ideas start to fly around, as I believe

necessarily would follow, if indeed this fundamental

matter that I have raised in not squarely dealt

with, then we have got real problems as a nation.

And that is what I am seeking to try and avoid.

So in essence, I guess the short answer that will not have anybody stepping too far over the

line is that what I am seeking is that the payment

of these fees, in effect, be postponed until the end of the action when it becomes a cost to be billed up

at the end. My argument is that, okay, given the

point that I would seek to put in the course of

these proceedings, not only just here but in the

wider public domain anyway - and I might mention

that this petition and this summons I have put in

as part of the documentation in this E.A.C. submission

which will be made available to the public, although

not formally in the Gazette as of the 21st - as of

next Monday, certainly within the State of Queensland

at all libraries and magistrate's courts. So it

will be published in a form, although not specifically

as set out in the rules.

But because we come back to this matter, the need

for me to talk to both the Commonwealth and State

Gazettes arises from that particular provision. So

as the form is being set by this Court, then it seems

to me that this Court really ought to - needs to

take a consistent view right across the board.	So
I guess to make it sort of modest on all of them,
so we are not straining too many friendships, I

guess 12(b) would be - while I sort of sought waiver,

again in order to be proper and allow to stay with

the present presumption that it is correct, I would

ask in effect that, okay, that it be postponed until

such time as the matter can be looked at properly

because we are in this hard done situation. I

believe one really has to get into the main argument

proper before the matter can be thoroughly dealt with

by the Full Bench which involves a review of these
particular statutes to which I have taken exception

for a very long time.

It comes back to me what the other point was.

What has been levelled is my insufficient substance

to the points. Now, depending on how you read that,

one can take that as being social moment, if you like.

Okay, while I had argued on a small amount to do with

me personally, in essence what I am talking now is a

principle that involves the very government of the

nation. Now what more do you want for substance.

It is wrong, fundamentally wrong, I believe, and what

I am seeking to do is to get somebody up to tell me

where I am wrong. And if nobody can do that, then

SlT3/ll/RB	22	17/5/90
Skyring(9)

it seems in essence the argument I am putting goes.

Now, no one has yet put an argument against me.

I have tried to get fire, but I cannot draw fire.

No one will speak against me and it puts me in a

very very awkward situation. So this is why, again,

the way I see it within Attorney-General's

Department, to say look, you have got to handle this

politically. But it is a legal point so it has got

to be handled in a court of law. So this is why the Court of Disputed Returns seems to be an ideal forum

because (a), we get before a court, (b), we get the

actual members of the legislature there and the

particular one I have drawn John Moore was on the

financial side in the previous administration, and

the chats I have had with him it is very clear that

he has been in some pretty high level discussions so

he knows what is going on, so he as one of the high

level bodies, it seems to me he ought to be brought

to answer. How come nothing was done about this lot?

And that is what I am seeking to do.

So what I am saying is, on this lot, again to

come back to the point that you made, and I think

I am horning in on what you are addressing, without

prejudging the point, I take your point on that,

okay, what say if I seek what I am asking under

12(b), in essence, not only of this Court's fees but
all other fees as are required as to be directed to
be engaged upon by these set of rules, and the major
ones are the publication and the actual filing fees

in the Court itself.

HER HONOUR:  Mr Skyring, we have to adjourn very shortly because

another matter is listed, but I do not want to cut

you short, so if you have other matters to say, I

will call the matter again later in the day.

MR SKYRING:  The only other - it was specifically on the point

I am trying to address - maybe if I have a bit of

a think about what you have said.

HER HONOUR:  Yes, you have a think about it and maintain contact with the Registry, because I cannot tell you when the court will again become free. You have a think about it but do not leave the precincts.

MR SKYRING:  No, there is no problem about that. You will not

get rid of me that easy.

AT 11.24 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

S1T3/12/RB	23	17/5/90
Skyring(9)

UPON RESUMING AT 12.05 PM:

HER HONOUR:  Before you start, Mr Skyring, there is also

a necessity for you to address section 356 of

the COMMONWEALTH ELECTORAL ACT.

MR SKYRING:  I have not got a copy of the Act with me.

HER HONOUR: Well, it is:

At the time of filing the petition the

petitioner shall deposit with the Registrar

of the High Court or a Deputy Registrar of the High Court the sum of $100 as security

for costs.

MR SKYRING:  Okay, I sort of had in mind - I did mention that

earlier on as part of the fees which have been

indicated to me from the Registry. I had in mind

that that would be covered under the general topic

that we had been arguing, although I had not

specifically mentioned it.

HER HONOUR: Well, I do not know that it would be.

MR SKYRING: All right. Okay, as I read your points you

made last time, basically, what you - well, at the moment, I say I have a wrong attitude in respect - was the way I read it any way - the form of

wording that I have got in the summons as I have

put it to you is not entirely consistent and the

way I am framing things, I am sort of rather

prejudging-the form of wording, in effect, seeks a

ruling from you which would be prejuding the issues.

Is that a fair statement of what you were - - -

HER HONOUR:  I do not think so. I think that there are a

number of problems in your application and that

is that the application will achieve nothing unless

some way can be found which enables other matters to

be dealt with like the security for costs in the

COMMONWEALTH ELECTORAL ACT and the publication of the petition.

MR SKYRING:  Okay. Well, it was that broad effort that I was seeking to address, just that very point. The

basis - if I can restate the problem: the immediate

problem as you see it - you are seeking me to

state a basis on which you can see it is justifiable

for you to make the orders that I am basically

speaking. Is that a better statement of the problem?

HER HONOUR:  Yes, that might be better, yes.

MR SKYRING: Right, okay. All right, well now, the basis for

the action or for the stance you have taken, in

SlTS/1/PLC	24	17/5/90
Skyring(9)

essence, as I see it. Like, I had nominated these

particular - this Order 72 rule 12 is the case in

point as I had thought was a sufficient basis.

So, if we could just have another look at that, again,

if I could come back to that:

The Court or a Justice may, in a particular

case -

and -

for special reason -

okay, let us home in. The special reason is the

inability of myself or, indeed, anyone - not just

me - to be able to make a payment in a strictly

legal form because we have conflicting statutes which

do not have a common scale of values as their basis.

That is a statement of the point which is, in effect,

made in my exhibit A to my affidavit. We have this

very fundamental conflict. What is our scale of
values, if we come at the thing from that point?

So, okay, there are numbers cited in this Third

Schedule, say, just as a case in point for the

actual High Court fees which is your filing fee of

300 bucks. All right, then we have got the

publication fees and there was a security deposit;

and just taking a further one under Order 68, there
was - just having another look at that one again.

I notice there was also publication in a newspaper

that was 3(b):

in the case of an election of a member of

the House of Representatives, publish in

some newspaper circulating in the Electoral

Division for which the election was held

a notice setting forth the fact of the filing

of the petition -

now, I will just speak briefly to that. I did, in

fact, take the matter up with the Courier Mail, as	a case in point. There is two ways this can be
done: either as a classified ad, in which case
there is a fee for it or the thing could be incorporated in part of an article, in which case there
would be no fee. That is a way the publishers could
handle the matter.

Now, if I could just ask. Is it the intention

of that item (b) that this would go in as - 3(b),

that that would go in - - -?

HER HONOUR:	Mr Skyring, I cannot give you advice on that.
MR SKYRING:	You cannot. Okay, well fair enough. All right,

well okay, in so far as it would go in as a

classified ad and a fee would become payable for

that as well. You see, we have got this conflict

SlT5/2/PLC	25	17/5/90
Skyring(9)

in the scale of value - talk about money values

but in terms of what? Is it paper money or strict

legal tender in terms of the CURRENCY ACT? So,

what I am saying is that there is a very fundamental

confusion in respect of what scale of values it is

that I have to work on, quite apart from the form of

payment. It is a terribly deep problem. So the

special reason I would put to you is this fundamental

conflict in values because of what the district

returning officer in accepting my gold coin at its

face value. It is different from the value that the

bankers put on it.	Now, this is a very fundamental
thing.	You know, we have not even got a basis on
which to work let alone to make the payments.	So,
it is an extremely difficult problem.

So, what I am saying is, well, okay, the special circumstances are the physical impossibility, because of this conflict of values, in making any payment

regard - sort of, form a side, just because we have

got this fundamental conflict in values. So, the

real point is to sort out - well, okay, what is our
basis for value? So, that is the very special

reason that, in effect, has precipitated the action.

It is that conflict. So, it is impossible for me

to have a firm basis on which to work. So, the

appropriate one - with that lead in, it would

appear 12(b) then:

the payment ..... part of a fee be

postponed until such time, upon such

conditions, if any, as the Court or a

Justice thinks fit.

So, what I am saying is that really I cannot make the payment because of this conflict of values to anybody,

not only just the Court. It would be to the

publishers of the Gazette and, indeed, to the

newspapers.	So, I have that fundamental difficulty.
prejuding the matter, then it would appear, surely, Now, if I take your point then about not	that the appropriate thing was that all fees - that
is why I framed item 1 the way I did - of whatever
nature, which is intended to cover the four items specifically mentioned here which was -

HER HONOUR: Well, that is the question, does it?

MR SKYRING: Well, it is for a special reason. I home in on that

lot. That is why rule 12 is being invoked because

the special reason is that we have this conflict of

values which makes it impossible, not only - well,

for you, for me, for anybody. You see, what are

we talking in terms of? And it is so fundamental.

It is presumed that we have a sound monetary basis.

If I could just speak briefly to it: the monetary

basis that we have is, in effect, paper money which is

bankers' money which is private banker's money which

SlTS/3/PLC	26	17/5/90
Skyring(9)

purports to be legal tender but which is not. We

have the proper Queen's money where the action has

shown up with the Returning Officer in accepting

it at its face value yet we have got this factor

of five in the numbers that go with it and that

is the inconsistency. So, we have, in fact, by

the Returning Officer's action, two scales of values

so which am I to work to, without prejudging the

matter? You see, that is the bottom line which has

to be determined and I do not see that as - that

is really the fundamental effort in respect of the

petition.

Now, if I could ju~t~raise another point, sort of going on with that. Now, just rereading

through Order 68 again, talking about item 5 this

time:

The petitioner shall, within twenty-eight

days after the filing of the petition, or

within such further time as a Justice allows,

cause an office copy of the petition to be

served upon every person whose election or

return is disputed by the petition.

Now, as I intimated, the way that I had framed the

action, the way the document is headed, I was sort of

seeking myself, vis-a-vis John Moore, on the basis

of the nomination but the corolla~y that follows

from this is that the nominations of really all other

members of the House of Representatives and Senate

be declared invalid and their seats declared
vacant because nobody put up a nomination in the

proper form as legal tender as required under the

ELECTORAL ACT.

So, if the matter was to be widened, and again

I am sort of seeking direction on that, in effect,

how this matter ought to be dealt with. You see, I

have framed it in respect of myself because that

was what my immediate problem was but as I have

really,-it is nothing personal to John·Moore, it is	indicated in the course of this argument that,
right across the board, that, in fact, as I see it,
if the point I am making is, in fact, held to be
valid, then the entire election is void. Now, the
question is really, ought that be raised at this
time?

HER HONOUR: Well, Mr Skyring, you have brought your action.

MR SKYRING: Right.

HER HONOUR:  I cannot advise you.

MR SKYRING: Okay. Well, as I framed - - -

HER HONOUR:	When I say, "you have brought your action", you have got a document on which you are asking me to
waive fees.

SlTS/4/PLC	27	17/5/90
Skyring(9)
MR SKYRING:	Okay. lA!t me get this straight for the m::irrent.	You are sitting

as the Court of Disputed Returns?

HER HONOUR:  Yes, I think that is right.

MR SKYRING: It is a nice point, this one, whether, in fact,

it is a preliminary hearing for the High Court as

such or as the Court of Disputed Returns because,

really, the matter is a very fundamental one where

the disputed returns actual - that sort of gets down

to the business of what the effort is about. But

the preliminary is actually - it is a general
proposition to the High Court because we are working,
in effect, under the High Court Rules as such, not

necessarily the Court of Disputed Returns.

HER HONOUR:  Yes.

MR SKYRING: All right. Well, it seems to me then that I

seek, under this Order 72 rule 12, the special reason

is as I have justed stated to you, is the conflict

of values which, in essence, precludes any firm basis

on which an assessment may even be made let alone

paid. So, you know, we go back one step further

which is what item 1 was actually worded, "or standing

orders be assessed" and then the payment sort of

follows on from that.

On that special reason then, I suppose, rather

than sort of take the - I had sort of taken the fairly

firm line that I had there but I would be quite happy

to amend the orders that I am seeking to take your

points in respect of consistency and not to

prejudge the matter, that it would rather not be
waived but that that be amended to - the actual

payment of all of the fees:

be postponed until such time, upon such

conditions, if any, as the Court or a

Justice thinks fit.

Now, my sort of immediate feeling on that lot,

although it is for you to have the final say on,
would be, well, okay, until we get our scale of

values, surely this would have to be at the end of

the action. So we have got to determine - okay,

work is done - that is not being disputed - for which

various people are entitled to payment. There is no

argument about that. The question is the form and

the amount because the two are interrelated and this,
of course, homes in - although this is a preliminary

matter which affects the Court, the real issue then

comes up in respect of the actual petition itself

and the point I am making, in effect, there is,

well, look, in terms of the judicial rulings that I

have got previously, legal tender, at face value -
which is what I did and nobody else did. That is

the argument which the others, in effect, then -

SlTS/5/PLC	28	17/5/90
Skyring(9)

and this is, really, what has to come out in the

actual hearing of the petition itself. I take on

John Moore, because that is the way I have framed

the thing in respect to my election, but then it

becomes a matter of consistency as to whether -

so the others would be declared void. So, it becomes

a matter of - I suppose, once word of this is put

around, I notice under other Parts, others could

take the matter up on a wider issue. So, I guess
there will be no real need for me to do that if

I just raise it which is the point and then others

can take it up. But the immediate point I guess

I am seeking then would be that those four fees

which it cited which was the actual filing fee, the

security deposit, just to cite them - - -

(Continued on page 30)

SlTS/6/PLC	29	17/5/90
Skyring(9)

HER HONOUR: But what gives me power to override the terms of

the COMMONWEALTH ELECTORAL ACT?

MR SKYRING:  You are not overriding them; what I am saying is

the specific point - the point at issue is about

taking of fees.

HER HONOUR:  But what about the security for costs?

MR SKYRING: Okay, that is another fee. Effectively it is - - -

HER HONOUR:  I am not too sure. I do not think that is right.

MR SKYRING: Costs, in effect, are lawyers - it is spoken of

in court parlance as being costs, but it is actually

lawyer's fees. That is what the costs are, in the

main. So it is a fee for the opposing counsel or,

in this case, the member, because I gather lawyers do not appear in the Court of Disputed Returns, it

is the party themselves. So it is in fact a fee to

cover that person's appearance.

Now, the others are in effect also fee for

service. If it is the Government Printer, it is just

a nicety of terminology. It is fee for service for

the Government Printer and fee for service for the

newspaper, so they are all fees. And it would seem

to me that they rightly come in under that. It is

the same problem goes right across the board. Okay, people mention a number but in terms of what form of
payment. And we have this enormous inconsistency and it is just an impossible situation, given the

statutes, and say because of what the returning

officer has done, I believe quite rightly, but that

has thrown the matter up. This matter had been tried

before but nobody has actually accepted it at face

value in the manner as he did and because that has

happened, that is what has put the fly in the ointment.

So what we have then is this - it is impossible,

physically impossible, because of this conflict for
the matter to be resolved and that is what has to be
thrashed out: what is - that is one of the lead items

I was seeking in the declaration.

Okay, what is

a legal tender of money in this country, which is the

lead item.

HER HONOUR:	Yes, I understand that.
MR SKYRING:	So I have just sort of brought it back, so that is

why I say, at the moment, that is why I am seeking,

although I was a bit heavy in my waiver, I take

your point on the prejudging there, that I would

change that,that that be amended to '~e postponed

until the matter of what constituted legal tender is

in fact determined". See, when you pay these bank

SlT6/l/RB	17/5/90
Skyring(9)	30

notes, the popular view is because the notes call

them on their face legal tender, that you are

actually paying legal tender. But that is not what

is in the CURRENCY ACT. That is gold coin, only.

So what is legal tender? This is how we get the

conflict. And it is not something which - see, that

has to be determined first. Okay, what is legal

tender? Because the whole argument, in effect, swings

on that and the Court has really got to make a

declaration. That is the first thing to be done at the

hearing of the petition.	What constitutes a legal
tender?

Now, this is where, in this particular instance,

I am sort of working strictly on basically what

Mr Justice Mad'herson said. Now, having chased the

whole history and where I see it is wrong and
what I am saying, why section 31 and 36(1) of the

RESERVE BANK ACT ought to be rescinded. Okay, legal

tender is gold coin. End of story. That was not

used and therefore	I am properly nominated, he is
not.	But that is the way - that is the determination

which needs to be made in the first instance and

everything else follows from that, and then once that

is done, then on the present - as I understand the

present basis of it is that who loses, pays, type thing.

But the question is - so it is my actually having to

shell out, in effect. This is the point which needs

to be determined. That is what I am trying to:.. that

is why my earlier efforts were seek to get a

declaration that 36(1) of the RESERVE BANK ACT as

being invalid, but the court was not prepared to do

that on the basis that I had put it up that the matter

was not - it was worded "of sufficient substance".

Well, it is a matter of how you interpret "substance".

I am sort of taking it in the sense of amount of

money involved, social moment, whatever. It really

has an impact on society. And the particular impact

of this one is that it means that our whole form of

government really is shaken to its foundations.

Now that, surely, is sufficient substance, and

in fact if this point could be addressed, then my

view of it is that, as the turn of phrase has it,

the penny will drop in a lot of places and the
answer to an awful lot of problems ought to become

apparent to a lot of people, which is the proposition

I would like to put up in the course of it and say,

this is how we can do it, which will solve the problems.

But the way the courts work, under the present deal

of an adversarial system, one needs an opponent so

to speak, so we can both put our arguments to put

the various points and then on that the court

adjudicates. But in the previous efforts, because

in effect it has been in essence between myself and

the bench, like the point you made this morning have

been made which have allowed me in, sort of, my own

S1T6/2/RB	31	17/5/90
Skyring(9)

thinking sort of working direct against the bench
to frame an answer, what looks like being an answer

to the problem, okay, so let us now put it out into

society and get a comeback. And that is really what

the whole effort is all about. If one does it as

one, well okay, that fires the whole proceedings.

That is what I was seeking. So my application then,

I guess, (1), would be that it be postponed and that

would allow the writ then to be served. If we make

(1) postponed, then that gets rid of (3) because the

question does not arise then. It is there but the

matter is not determined. The aim is to let the case

proceed so that the answer will be given in the course

of the hearing. There is no strain on anybody then.

So if I were to amend my request to that and

seek your concurrence on that, I guess, is really

what I am - to take the points - you know, I am not

prejudging, and I am not putting anybody in a nasty

position. The answer will be given in the process of

the hearing itself. That is what I am saying.

HER HONOUR:	Yes, I understand that.
MR SKYRING:	So I guess that would be - for the thing to go -

and I believe it should go because as I see it we

are not going to get the matter up into public

debate unless we do. That is the nature of the

problem. It is a matter of great social moment,

that is the special reason. It is a matter of great

social moment, it involves everybody, but unless
somebody asks the question, brings the action, then
the question cannot be answered. It really involves

the whole of society and I am seeking to use the

Court as a forum because there is a very good set
of ground rules in terms of which the matters can be

resolved. It is better - I believe it is much better

to do it in the Court where there is this controlled

conditions, rather than out in the public arena

where it is Rafferty's rules and how the issues are

ducked and nobody will address the question.

But it is actually - I believe it has to be

done in the Court because what I am seeking is an

interpretation of statute and that is the Court's

job. And the particular statutes that I am seeking

interpretation of is in respect of this legal tender.

That is specifically called up under the ELECTORAL

ACT, under 170, and in terms of JusticeM9.cPherson's

earlier judgment referring to the CURRENCY ACT. I

have basically worked on his judgment. Section 170(c)

they are very precise about, legal tender.	They say
"legal tender or in a banker's cheque".	Now, in the

particular instance within Ryan, no one used banker's

cheques. So that was very sporting of them. So we

are fairly and squarely on legal tender .. So what

is legal tender? That funny paper stuff or the real gold stuff

S1T6/3/RB	17/5/90
Skyring(9)	32

That is really the point to be determined and

from that everything follows.	But it is the
nature of the problem, Your Honour.	So that is

why I would seek - again, the way I have framed it,

again, there is item 4. Okay, I have given you my

view. That does not have to be necessarily what

you do. You have the final say on this lot but I

think you see the moment of what I am trying to do,

and to try and do something that will let a very

deep seated problem be addressed.	Because the
politicians will not do it of themselves.	My view
of it is they just do not see it.	I have tried, I
have tried damn hard to raise it.	No one will talk

about this one. No one. So I am forced to drastic

measures, if I can put it that way.

HER HONOUR:  I think, Mr Skyring, you should confine yourself

now - if you have anything else to say, you should

confine yourself to the matters you wish to advance

in relation to the waiving of the fee. I think

you have travelled extensively over the substance

of your petition.

MR SKYRING:  The specific point is that I say I would change

the waiver to - arid I make that point, that as the

wording of your 12(b), that the payment be postponed.

I change the "waiver" to "payment be postponed" and

that that applies not only to the court fees but to

all of them. That is the point I am making.

HER HONOUR:	Do you have anything further to say in relation to the question whether or not Order 72 rule 12(b)
extends to the security deposit or the moneys that
will be necessary to obtain publication of your
petition if it is filed?
MR SKYRING:	I put the point in respect - I guess it becomes on this interpretation of fee. That really - - -

HER HONOUR: It does not only do that. There is the question

of how the High Court Rules could, in any event,

be used to circumvent the words of the COMMONWEALTH

ELECTORAL ACT which requires, in section 356, that

a sum of $100 be deposited as security for costs.

MR SKYRING: Okay, but I make the point that while it is said

in those words, if you look at the mechanics of it,

it is actually a fee for appearance. That is the

jargon of what costs is.

HER HONOUR:  I understand the argument you have made on that

issue.

MR SKYRING:  The other point is that, okay, we have still got

this overriding statute, to no man shall we sell,

defer or deny justice or right, that is a fundamental

statute which governs the whole of the court proceedings.

SlT6/4/RB	17/5/90
Skyring(9)	33

And in terms of that, I would question whether in

fact these rules as presently framed are in fact

correct anyway, if one takes the ordinary meaning

of words on that statute, and that secures the

individual's liberty against the State.	Now, my
contention on this lot is that I - - -

HER HONOUR:  Mr Skyring, you are not dealing with the problem

of the COMMONWEALTH ELECTORAL ACT which I would

have thought could not be, as it were, amended by

a rule of the High Court and which in any event has
got nothing to do with what you seek to draw from

Magna Carta because when this Court sits as a Court

of Disputed Returns, it is sitting in an entirely

different capacity from that which it exercises when

it sits as the High Court.

MR SKYRING:  Okay, but it is still a court-

HER HONOUR: It may be still a court, but- - -

MR SKYRING:  We are involving procedures of justice, Your Honour,

surely.

HER HONOUR: Well, the general theory is that when you are

sitting as a Court of Disputed Returns, you are

exercising the delegated power of the Parliament and
not the judicial power conferred by Chapter III of

the CONSTITUTION.

MR SKYRING:  Okay, but that particular statute, surely, covers

the entire range, regardless, of judicial function

of individuals versus the State. That particular

interpretation is in that hand up that I think I had
in that lot, going back to Sir Edward Coke's
interpretation of the particular statute which was

inherited by this nation at State level, which to me

is interesting that the case should be heard in

New South Wales because it came as part of the law

here in 1828 when the whole judicial system was

set up.

It is still there. The latter two parts of the first part is never quoted about sale, and

it are quoted frequently about denial and delay but

Sir Edward Coke is very clear about that ..... .

is spares without sale, which means any money

changing hands: makeover or dispose of in exchange

for money. It is the very definition of the

word "sale".

HER HONOUR:	I wonder how, for all these years, the courts have been imposing filing fees.
MR SKYRING:	I am very interested about that one, Your Honour.

If I may venture you a thought on that one: my view

of it is because they did not come to grips in those

celebrated case in 1627 and 1637/1638 when this matter

of tax and money and such like case up, because the way

SlT6/5/PLC	34	17/5/90
Sky17 ing ( 9 )

the matter was argued at the time, in fact, the

answer was not given as I believe it should have

been given in the courts. Although the technology

was there, those arguing the case - this is the way

they handled it and I have read some of the
transcripts or the reports of those particular

trials. They are very interesting - the point was

not raised. Consequently, the way the system operates, the ban~srules,on the arguments put from the bar table and the basis of the argument

was on precedents. So, the judges had a look at

the precedent and they found nothing that would

back the arguments that were put from the bench.

So, the problem was then that, in essence, the

courts were unable to answer the problem, there was a

civil war and a monarch lost his head, I believe, by

abuse ot process. The effect of it has been that the courts have got into a traumatic state which I do not believe they have pulled out of to this day and the

fact that this practice stands is evidence of that.

When one thinks about it happening again, and I have

read what Charles I said at that trial in

Westminster Hall, it was an enormous abuse of

process.

HER HONOUR: Well, I do not think we need to - - -

MR SKYRING:  Okay. Well, anyway, I make the point in respect

of that particular high level statute, that by

postponing, as I am seeking at this stage, all

facets, you are interpreting your rules which must

be regarded as being subsidiary to that, in a sense,

which was in accord with the spirit of that very

fundamental statute and allowing for what has been

practised, as you have just read, for 350 years.

One does not change these things overnight but,

in essence, what I am doing in this action, is

in effect, brining this into question in a way which

it has not been for the 350 years although it has

been possible to have done it - certainly for 300 years -

but this has never occurred and it is only now, with

the technology that we have got, plus the general level

of education - how come I am standing here before you

to argue the point - that it is possible to take

a second look at our inheritance and that is, in

essence, what I am asking you to do.

So, by putting the interpretation on rule 12

that I am asking you to do, you are getting back

and seeking to provide an answer which was not

provided 350 years ago and it will, indeed, open the

way to a very wide-ranging change which clearly the

community is seeking. Now, you make the point in

respect of the Court of Disputed Returns sitting,

in effect, as sort of part of the parliamentary

jurisdiction then, all right, it is making

statutes of this order which is their business and if

they seem to have lost sight of this through- - well,

- S1T6/6/PLC 35 17/5/90

my view on that is because of this partisan

corruption which has got to do with inability to

come to grips with this monetary question and they

are unable to do the job that they should. So,

hence, I have come here where, I say, there is the

discipline, you are not so involved as they are,

you have got the backing, the whole background

training is different, the stance is different

and what is being sought is an interpretation of

statutes which is your business. The legislature

makes them. It beholds the courts to interpret

them and I have happened to have dragged up a few

olds ones which - and it becomes relevant in this

particular action because that particular statute

was reinstated in Queensland in 1984. Although

it is in the federal area, because it is a federal

election, the actual action itself relates to

Queensland.

So, we have formally reinstated it in Queensland

where the legislature perhaps not fully realizing

what they have done but they have done it, so it is

on the books although it is doormant in other

States and its spirit has been lost. So, what I am

seeking to do then is to get you to come

back in your statutory role or the role you

mentioned, you are sort of an arm of the Parliament

in this particular one, to interpret the fundamental

statutes which is what they should be doing themselves.

This particular one that I am citing is Chapter XXIX.

My reading of the legal stance on this lot is that

it is, in essence, a guidance statute, if you like,

the details of which are worked out in the subsidiary

legislation.

Now, okay, these particular rules, in effect,

can be regarded as part of the subsidiary legislation.

Now, as a general proposition, certainly, this

applies in the engineering game, although one must wonder whether the de facto situation in the legal

arena would appear to be a little bit different,

that the detail can be different from the general.

Now, I would dispute that because if you have that

then you have got the formula for chaos which is

what we have got as is manifested in this currency

thing, and that is the reductio ad absurdurn proof.

So, what I am saying is that by putting the

particular interpretation on rule 12 as I am

asking, you are strictly in conformity or you are

moving in the direction anyway which will let you

take further steps later on, you are not doing it

all in one hit, you are moving in the direction of

what would appear to be a proper interpretation

in terms of the plain meaning rule of that very

fundamental statute as has been inherited and it is

part of the law of this land. There are those who

would change the law but that is still on the books,

and certainly in Queensland which is where this action

relates to and, by implication, to the rest of the nation.

S1T6/7/PLC 36 17/5/90

So, the way I see it, not to do it or to put

that view on, you are continuing what must fairly

be said to be a malpractice which has come about

over centuries for inability, for whatever reason,

to be able to come to grips with the major problem.

I would suggest - not meaning this in a nasty sense -

literally, incompetence on the part of the

legislators. They have not the knowledge.

Competence, just to be precise on that lot - - -

HER HONOUR:  Yes. I think - - -

MR SKYRING:  Competence involves two parts knowledge and

the wisdom to use the knowledge and the confidence

to use the knowledge. My view is that they have

lost sense of the first one so what they have

enacted is detailed statutes and, indeed, it is
carried through into the Court Rules, have put us

at odds and this is fairly typical of efforts

in a whole lot of problems. So, by doing this,

not only are you straightening up your own house,

or at least moving in that direction, but you allow

it to be done right across the board and it would

seem appropriate that it be done in this particular

forum seeing it is the Court of Disputed Returns.

I had not realized that there was that jurisdictional

difference that you saw acting as an arm of the

Parliament as the Court of Disputed Returns, not

in your normal sort of High Court role.	I had not
realized that.	But since you have mentioned it,

well, it fits with the general proposition I am

seeking to put.

So, not to do it would be, I believe,

wrong from all sorts of points of view but

particularly that one because the whole aim is

security of the liberty of the individual against

an encroachment by the States.

HER HONOUR:  Well now, this case has not got anything to do

with the liberty of the individual, Mr Skyring.

Please confine yourself to the issue.

MR SKYRING:  All right. Okay, but it is that very fundamental

statute, it is the selling of justice bit which

is the inherited statute which that detail -

certainly item 8, taking of fees, certainly in

respect of the Court. My view is that item 8,

about taking fees anyway, I would submit, is at odds

with that great Charter provision that I have cited.

Now, 12 and 13 then clearly allow outs and

the fact that they are there would seem to indicate

that it is realized that there is something wrong

but they cannot quite see how to get it right. The

fact that it is allowed - again, I come under 13 -

under exceptional circumstances is conflict to the

statutes, again, to do with values. So, the A-G can

SlT7/2/PLC	37	17/5/90
Skyring

come in but, again, I sort of question his standing

because of the fundamental issue.	So, we get back
to, you know, the prejudgment again.	But all I

just mention it is because that rule is there as,

indeed, are the other options that are allowed to

you under rule 12 - but why are they there? It would seem to me as a reflection of that deeper

issue under the great charter which is the high

level statute that basically ought to govern and

is held to govern or believed to govern, because of the

latter t,;·,;ro parts of it are mentioned

about denying and delaying is generally raised in

the context that judicial process does not operate

quite as it should and the courts will take very

drastic action in terms of those latter two and all

I am asking is that it be extended to the first one

which is the really curly one which the lawyers never

mention.

HER HONOUR: Yes. Well, I understand that, yes. Is that

MR SKYRING: Well, that, I guess, is my - so that is just

the ultimate rationale as I have put it in the

details in it that speak to it. I guess I cannot

think of any more, Your Honour. If that does not

make the point then the law to me just does not

function as I believe the law should and if I could

be harsh about then I believe it deserves contempt,

Your Honour in that sense.

HER HONOUR: Well, Mr Skyring, I do not think there is any

necessity for you to go into that sort of area. It

does not assist your case.

MR SKYRING:  Okay, on that, Your Honour, I will leave my case, with respect.

(Continued on page 39)

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Skyring

HER HONOUR: Yes, thank you. Well, Mr Skyring, I would propose

to dismiss this application.	I give my reasons for
so doing briefly.

This is an application under Order 72 rule 12

for an order in terms that payment by the petitioner

of any fees or charges of whatever nature required

under any existing standing orders to be assessed

in connection with any facet of this action be waived

so that the action may proceed without sale, denial

or delay.

The preliminary question raised is as to the waiver or - I should say for reasons which will

later become clearer - the postponement of fees to

be paid in connection with a petition which Mr Skyring

seeks to bring to this Court as a Court of Disputed

Returns which bears date 8 May 1990. The basis for that petition is a claim by Mr Skyring that he and

he alone was validly elected in the last election to
the seat of Ryan, he being the only candidate who
then paid the required fees by way of legal tender;

his argument being that legal tender is gold coin

and none other.

It is that argument which is at the basis of

his application under Order 72 rule 12. Mr Skyring

submits that it is impossible for him to provide legal

tender because of uncertainty and, indeed, contrariety

in the relevant legislation as to what, in fact,

constitutes such tender.

During the course of argument, it was put to

him that to accede to his argument would, in fact,

involve a prejudging of the issue which he seeks to

agitate by his petition. Accordingly, Mr Skyring

indicated that the order he would now seek is one

simply postponing payment of fees until the
determination of the petition. That, however, does

not seem to me to solve the problem which is raised

by the nature of the proceedings. There is no doubt

that under Order 72 rule 12 this Court has power to

waive, postpone or remit any fees which are payable

under Order 72 rule 8 and as are set out in the Third Schedule. However, they are not the only fees, costs or charges which are involved in the

pursuit of an electoral petition.

In the first place, section 356 of the

COMMONWEALTH ELECTORAL ACT 1918 requires the payment,

upon filing:

of $100 as security for costs.

I do not understand security for costs ordinarily to relate to the same matters as are comprehended within the expression "fees" but, more importantly, I do

S1T7 / 4/PLC	39	17/5/90
Skyring

not perceive any way in which this Court, by its

own orders, could defeat the operation of an Act

of Parliament.

Secondly, I do not think that there is any power in the Court under Order 72 rule 12 to deal

with the other matters which are raised under Order 68

in relation to electoral petitions, that is to say

the publication -

of the petition in the Commonwealth
Gazette and in the official Gazette of

the State in which the election was held;

and -

in a -

newspaper circulating in the -

electorate. I do not understand that the costs that

would be payable in respect of such publications
could properly be understood as fees comprehended

within the operation of Order 72 rule 12.

Unless these other matters are dealt with, there

is no point to be served by postponing the fee in

respect of the petition, for much more than the

filing of the petition is necessary before the

matters raised in the petition can be the subject of

determination in this Court. Accordingly, I dismiss

the application.

AT 12.53 PM THE MATTER WAS ADJOURNED SINE DIE

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Skyring