Skyring v Jones

[1993] HCATrans 185

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Registry No C17 of 1992

B e t w e e n -

ALAN GEORGE SKYRING

Appellant

and

FRANK WILLIAM DUDLEY JONES

Respondent

BRENNAN ACJ
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 1 JULY 1993, AT 12.35 PM

Skyring(lS) 1 1/7/93

Copyright in the High Court of Australia

MR A.G. SKYRING: Skyring in person, Your Honour.

MR DJ McGILL:  May it please, Your Honour, I appear for the

respondent. (instructed by the Australian

Government Solicitor)

BRENNAN ACJ:	Mr Skyring.
MR SKYRING:	In an endeavour to expedite proceedings I have

forwarded a written copy of my argument which I

trust would have got through the system to you.

Have you had a chance to have a look at it?

BRENNAN ACJ: Yes, it did, and it seems to relate chiefly to

Justice Deane. the questions of currency and the judgment of

MR SKYRING:  The one to which I was referring was

specifically in respect of this judgment by

Justice Toohey which is the immediate business

here.

BRENNAN ACJ:	Yes.
MR SKYRING:	That was a fairly short one, or short by my

standards, a 14-page effort wherein ·I specifically

addressed the questions of vexatious litigation.

BRENNAN ACJ: Yes.

MR SKYRING:  As an attachment to that I had also included

the much larger one which seeks to address what I

have always seen as the major problem which is what

I have been trying to get at for over a decade.

BRENNAN ACJ:  That is right. Your submissions do seem to

come back again to the question of whether the

reasons which were given by Justice Deane have

illuminated the problems that you want to address.

MR SKYRING:  In short, yes. My view of that is that have

partly, but that by no means constitutes all that

ought to be said on the subject. Against that

background, as I do point up in that argument,

these old proceedings which have reached this

stage, actually originated in my challenge to the

Taxation Commissioner's assessment going back to

1980. That eventually came on in 1984, or rather

in 1983 in the Supreme Court here, wherein the

fundamental case was actually stated as I see it.

I believe some errors had been made in that

statement. That was appealed to the Federal Court,
wherein the first check that was run on it was

whether that appeal was competent. It was ruled

that it was. It was spoken to there. Again,

although my appeal was dismissed, it seemed to me

Skyring(lS) 1/7/93

that the essential problems which were raised in

that action actually went to the validity of

statutes which it seemed to me was really the role

of the High Court to address.

I sought leave to appeal that Federal Court

decision. I put the documentation in, but it is

that application which has never really proceeded,

and the question arises as to whether, in fact, I

have been done justice. This really becomes the

central issue as I understand proceedings.

Because of the sheer complexity of the matters

which I had raised in this action, plus the fact

that I am not a lawyer, this raises enormous

questions in respect of what actually does

constitute correct procedure in such a situation.

I had realized when I brought the action in the

Federal Court that there were constitutional

matters which really did quite properly involve the

Attorneys-General. I did serve a 78B notice on

both the Commonwealth and our State

Attorney-General. They did not take a hand in the

proceedings in the Federal Court as I believe that

they should have.

This immediately raised problems then when I

sought to get my leave to appeal up in this Court

in 1984 after the Federal Court ruling. Although I

had put the documentation in, I did approach the

Registrar during the Adelaide sittings in 1984 as

to whether I would be listed, and he made the point to me, "Even if you were a barrister, you could not

handle this case". Now, that really posed enormous

problems. So this then, basically, launched me on

other directions to try to break the problem down

into something tractable, and all the actions which

have really happened subsequent to that really were

my efforts in an endeavour to try to reduce the

problem to something which the Court could cope

with.	As you were indeed to point out in 1989,
"Action must be brought in a form with which the
Court can cope".	So that I have been endeavouring
to do.

There has been a whole stack of hearings, both

in this Court and in the lower courts, my view of

which is that the argument, as I believe now, has

been got into a tractable form where it ought to be

able to be dealt with reasonably promptly by the appropriate parties. So, to this end, it was my

argument to that original 1984 motion which was the

fairly comprehensive effort which I had put in in

this latest round and was the attachment to my

argument to address the judgment of Justice Toohey

in respect of whether or not I am a vexatious

litigant.

Skyring(15) 1/7/93

On that point perhaps I might be able to deal with things fairly promptly, in view of the case

that was cited to me from the AG's office

yesterday.

In respect of the documentation which I had

put into the Court - all of my authorities, which I
have put in as a sizable bundle yesterday, those

basically provide the background information which

is required by your practice rules as what is the

basis on which I have acted. That is intended to

provide the hard documentation to supplement my
arguments on both this present appeal in respect of

Justice Toohey's judgment, which I see as a

preliminary, and a very essential preliminary, to

what I regard as the main action and always have

regarded as the main action, namely the way that

the whole national enterprise is financed. And

this involves an interaction between taxation and

banking and moneys remitted.

BRENNAN ACJ: This is the very problem, Mr Skyring: that has

been what you have seen as the principal subject.

MR SKYRING:  Your Honour, okay, right. Now I would

specifically like to address the question in

respect of procedure. On this matter of vexatious

litigant, one of the cases which was cited in the

hearing before Justice Toohey was that of

Re Chaffers, which is an 1896 action wherein

Mr Chaffers had apparently been issuing process

against a very large number of influential people.

When that case came before the courts the

criterion that was advanced by the Attorney-General

in that action was that a case can be regarded as

frivolous and vexatious:

in the absence of an explanation given -

being given, if one can be given, and in that case

none was given. That seems to me to be a pretty

fair basis for sorting out whether or not one is

being oppressive and vexatious in the sense that these matters have been used judicially.

My presentations that I put in these last two

sets of arguments is my overview, my explanation if

you like, not only of the series of actions that I

have taken since 1985, because that appears to be

the - what appears to be the contentious actions of

mine, but also the much more difficult question,

which is what I sought to address by my leave to

appeal from the Federal Court back in 1984. So, by

that criterion I believe I have provided what seems

to me to be the information that ought to be

provided as per the Attorney-General's ruling back

in 1885, ie, you provide an explanation.

Skyring(lS) 4 1/7/93

The question arises, "Is it creditable?", and

a whole lot of other things which become important

in the judicial sense.

A very specific item which comes up in respect of this vexation, which is mentioned in the cases

which I had listed there, is that the matters which

have been properly tried and are sought to be

relitigated, where there is no basis for the
relitigation. That is deemed in the judicial sense

to be vexatious, and it is in this regard that it seems to me that this judgment of Justice Deane's

and the Full High Court ruling on it later in 1985

seeming to confirm it, has formed the basis for the

view that I am vexatious. I have always made the

point that that was never, ever properly tried. It

was an interlocutory - - -

BRENNAN ACJ:  You made the point. You have made it

consistently and you have made it frequently.

MR SKYRING: Right.

BRENNAN ACJ:  And it is the consistency and frequency of

your having made the point which founds the order

made by Justice Toohey. ·

MR SKYRING: Without reasonable grounds. It is not -

frequency and vexation is without the reasonable

grounds.

BRENNAN ACJ: Yes. That is right.

MR SKYRING:  It is this reasonable grounds effort which is

the contentious item. Now I say - - -

BRENNAN ACJ:  Mr Skyring, I think you will have to address

this point and that is that the matter has been

held to have been decided contrary to your views.

You may not wish to accept that, but the view of

this Court has been expressed repeatedly that that

issue has been decided and that any repetition of

an attempt to raise that issue again is unjustified

and unreasonable.

MR SKYRING:	That is the point on which I do take issue with you, Your Honour, because as I understand
proceedings, that judgment by Justice Deane is
deemed to have been the initial action which is
what starts off the whole process, and the
presumption is that it had been tried properly.
Now, my contention always has been that that was
never the initial action.  The initial action was
by Justice McPherson in the Supreme Court in 1983
when the matters in issue were actually raised and
Justice McPherson stated the case as to what was
really in issue. And that was how the matter came
Skyring(lS)	1/7/93

up. It is not just a currency matter per se. It

is currency in respect of taxation. There are the

two, and they have always been held together.

So my contention is, and to which I have

maintained, although I have not perhaps pushed it as forcibly as I have been, because I have tended

to have been overwhelmed by just the sheer weight

that has been attached to these other matters, is
that Justice McPherson's judgment, I believe -

although he restated what is the given legal wisdom

in respect of the extent of powers under

section 115, is, I believe, incomplete and it is in

error.

BRENNAN ACJ:  Mr Skyring, you must address the question of

whether you can justify a continuing repetition of

this argument, once it has been held against you

that the decision of Justice Deane, affirmed by

a Full Court, has concluded the matter.

MR SKYRING:  I put the proposition very simply to you,

Your Honour, in respect of what I have just said

about Justice McPherson's judgment in respect of

paying tax. He made the point in that - the full

text of that judgment is actually given in that

hand-up which I gave to you. In this matter on the

matter of discharge of debts, he made this
statement which I believe is in fact quite correct:

In this court, the matter of the discharge of debts is governed by the Currency Act

section 16 of which prescribed what is legal

tender.

That Act binds me. Now, that statement, I believe,

is fair and proper and.is basically backed up by

the Rules of the Supreme Court or to by Order lA of

which refers to what is currency in terms of which

debts - - -

BRENNAN ACJ:  You are not addressing the point I drew your

attention to, Mr Skyring.

MR SKYRING:  The essential point is - if perhaps I can come

at it this way - a reductio ad absurdum type

proof. If in fact, what everybody is saying is

correct, and that is the basic assumption which

underlies your observation, the question I put to

you is, "How can I pay my tax in a strictly legal

manner in light of Justice McPherson's judgment?"

As I understand proceedings, the initial judgment

stands until it is overturned on appeal. That

judgment - although I have sought to appeal it, I

have not even been heard on the matter, on that

judgment, and that is the initial judgment in the

whole train which started everything off. On that

Skyring(lS) 6 1/7/93

basis, my contention is, with the currency in

circulation that is made available by the Crown, I

cannot pay that tax in a strictly legal manner, and

if I cannot pay it legally, I will not pay it at

all, as is my entitlement.

Having realized where the problem is, the

nature of it and what could be a possible answer to
it, were matters properly aired, I have dug my

heels in. On the basis of that, I am entitled to

process. This is a point which is made in

the - - -

BRENNAN ACJ:  Mr Skyring, we are not going to sit here

listening to you continuing to canvass issues which

have already been conclusively decided against you.

MR SKYRING:	But I contest your - - -
BRENNAN ACJ:	We are here to consider whether there is any ground for interfering with the order made by
Justice Toohey.  The more that you have said, the
more you have reinforced the validity of what Justice Toohey observed, namely, that nothing seems
to prevent you from continuing to advance arguments
which have already been decided adversely to you.
MR SKYRING:	But have they been decided adversely,

Your Honour? That is the point you are making.

The Full Court on appeal merely said, "We are not

persuaded that errors have been made." That is not

to say that I am wrong. They are not persuaded.

Now, I am seeking to make the point to you here now, as a situation live on the ground which I and

17 million other people in this nation have to

contend with in respect of paying tax. Now, I say

the total situation which the Crown apparently

upholds is such that I cannot pay my tax legally.

Very simple.

BRENNAN ACJ:  Mr Skyring, we will now give you five minutes

in which you can state as succinctly as possible

any points which you think are worthy of our

consideration in entertaining an appeal from the

judgment of Justice Toohey.

MR SKYRING: All right, well I will cite the

BRENNAN ACJ:  Now, you have five minutes and at the end of

that time if there has been nothing further said,

we will not hear you further.

MR SKYRING:  On this basis then, I would cite extracts from

the case which was mentioned to me yesterday, or

the copy of which was given to me yesterday, which

is Oceanic Sun Line Special Shipping Co v Fay at

pages 232, 233. This treated the general matter of

Skyring(lS) 1/7/93

forum non conveniens plus a few other matters in

which the whole matter of vexation and oppression

was raised in respect of forums in which hearings

ought to be conducted. At page 232, and this was

in respect of your own judgment:

A brief statement of the established law can

be extracted from the judgment of Gibbs Jin

Cope Allman (Australia) Ltd v Celermajer.

"However, the question that I am bound to

pose to myself is not simply, "Which is the

more convenient forum?" The principles to be

ap.plied in such a case as this were laid down

by the High Court in Maritime Insurance Co Ltd

v Geelong Harbor Trust Commissioners.

Sir Samuel Griffith, whose judgment was

concurred in by the other members of the

court, said: "I will read one or two passages

from the judgment of the President, Sir Gorell

Barnes, in which the other members of the

Court of Appeal concurred, in Logan v Bank of

Scotland (No 2). He said: "The court should,

on the one hand, see clearly that in stopping

an action it does not do injustice, and, on

the other hand, I think the court ought to

interfere whenever there is such vexation and

oppression that the defendant who objects to

the exercise of the jurisdiction would be

subjected to such injustice" [I interpolate

there the words supplied by Warrington Jin

Egbert v Short] in defending the action that

he ought not to be sued in the court in which

the action is brought, to which injustice he

would not be subjected if the action were

brought in another accessible and competent

court."'"

So, the essential point being made there: if

process is to be exercised properly, and it is the

matter of the forum in which it is done, there must

be no injustice to the plaintiff and, indeed, no

oppression or vexation to the defendant.

Now, in respect of the initial action to which

I took great exception: the plaintiff in that case

was the Tax Commissioner as he got into me for tax.

I was the defendant, and I say I have been

subjected to massive oppression and vexation in the

sense which was defined on the page opposite by

Lord Kilbrandon:

The grounds on which the court is

justified in refusing to exercise its

jurisdiction when it is regularly invoked are,

and in my opinion, should be, grave and

narrowly confined. The construction placed on

Skyring(lS) 1/7/93

the words "oppressive or vexatious" gave

Scott LJ's formulation of the principle a

narrow and precise operation, as

Lord Kilbrandon pointed out in The Atlantic

Star.

"There are plenty of earlier examples of the

use of the words "oppressive" and "vexatious"

in this context. But the words have, at all

events today, certain shades of meaning which

make it difficult to accept an uncritical

construction as appropriate to all

circumstances in which guidelines - and they

are nothing more - may be required.

"Oppressive" is an adjective which ought to

be, and today normally is, confined to

deliberate acts of moral, though not

necessarily legal, delinquency, such as an
unfair abuse of power by the stronger party in
order that a weaker party may be put in

difficulties in obtaining his just rights.

"Vexatious" today has overtones of

irresponsible pursuit of litigation by someone

who either knows he has no proper cause of

action, or is mentally incapable of forming a

rational opinion on that topic."

It is my submission, that, in fact, it is precisely

in those terms of "oppression" and "vexation" that
the Taxation Commissioner has behaved towards

myself as the initial defendant. I put up a very strong defence going to the very heart of the way the whole judicial system operates. That has never

been satisfactorily answered. I believe in terms

of the criteria set out in Chaffers to which I

mentioned at the outset:

in the absence of an explanation given, if any

explanation could be given, and none has been

given -

the party is "vexatious". In this action I submit

it is the Taxation Commissioner who was the

vexatious litigant, not myself, and if the Court

sees fit to condone such practice then it seems to

me the Court is doing not only itself, but this

nation a grave injustice. Thank you, Your Honour.

BRENNAN ACJ:	Thank you, Mr Skyring.
No argument has been raised which justifies

disturbing the order made by Toohey J. that the

appellant should not, without the leave of the

Court or a Justice, begin any action, appeal or

other proceeding in the Court.	The appeal is
dismissed.

Skyring(lS) 9 1/7/93

MR McGILL:  I am instructed to ask for costs.

BRENNAN ACJ:  Yes. Mr McGill. What do you have to say about

costs?

MR SKYRING: Well, I come back to my fundamental point,

Your Honour:  no man should we sell, defer or deny

justice or right. And it comes back to the crucial

question which has run right through this and which

I raised before Justice McPherson back in 1983, in

terms of the ordinary meaning of words: "sell",

make over or dispose of in exchange for money;

"money", current coin.

In terms of the Currency Act to which he

referred, section 16 of the Currency Act speaks

only of gold and silver coin. We do not have any, so, not only do I object to the basis on which the

claim is made, it is without foundation and that

particular statute forms a fundamental law of this

State, it also cannot be discharged in a lawful

manner. The role of the courts as I see it is to

dispense justice in accordance with the law. That

is the law and justice is not being dispensed in

accordance with that if that order is upheld.

BRENNAN ACJ:  The appeal is dismissed with costs.

AT 12.59 PM THE MATTER WAS ADJOURNED SINE DIE

Skyring(lS) 10 1/7/93