Smith v Toowoomba Regional Council

[2009] HCATrans 196

[2009] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2009

B e t w e e n -

CHRISTOPHER LAWRENCE SMITH

Applicant

and

TOOWOOMBA REGIONAL COUNCIL

Respondent

Application for reinstatement

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 14 AUGUST 2009, AT 10.15 AM

Copyright in the High Court of Australia

MR C.L. SMITH appeared in person.

MR S.P. FYNES‑CLINTON:   If the Court pleases, I appear for the respondent.  (instructed by Bernays Lawyers)

HER HONOUR:   I think we took note of the material that has been filed by Mr Smith the other day.  You have had an opportunity now to read the written argument for the Council, Mr Smith?

MR SMITH:   Yes, your Honour, I have.

HER HONOUR:   Now, what do you wish to say in addition to your written argument?

MR SMITH:   Your Honour, I have made up a draft of a submission.

HER HONOUR:   Have you shown that to Mr Fynes‑Clinton?

MR SMITH:   I have not as yet, your Honour. 

MR FYNES‑CLINTON:   No objection will be taken, your Honour.

MR SMITH:   I can do that.  Sorry, your Honour, the nerves are not as good as they ought to be.

HER HONOUR:   Do you have a spare copy for Mr Fynes‑Clinton?  Give it to him first.

MR SMITH:   Yes, your Honour.  It has not got the numbers down the side on that.  I have just done that on this one.  Would your Honour like to start with this as the submission in summation of their arguments?

HER HONOUR:   Would you like me to read this first?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Take a seat while I read it.  Yes, Mr Smith, in relation to the problems that you have in having the application accepted within the time limited, as I think I mentioned the other day, I do not think the Council is really taking a point about that.  They are not saying that there has been great delay.  Their submission as to why your application should not be reinstated is that you have no prospects of success on special leave.  That is the angle and the focus of their submissions.

MR SMITH:   I am sorry, your Honour.  I actually got confused on reading one of their paragraphs and I did ask – or I do mention that with what they had said did this mean that I had a good prospect in the matter.

HER HONOUR:   No, what they are really saying is that the Court of Appeal’s judgment is so obviously correct that you would have no chance of getting special leave from this Court.

MR SMITH:   Well, in that case, your Honour, I do not believe that to be correct as the jurisdiction lies within the High Court because it is a matter referred to or referring to articles of the Constitution and treaties signed by Australia. Just off the top of my head, the articles ‑ ‑ ‑

HER HONOUR:   I know the High Court has jurisdiction, but the High Court also has a procedure of special leave and in that process you would have to satisfy two Justices of the Court that the matter was appropriate for the High Court to deal with.  Not all matters are heard by the High Court.

MR SMITH:   Yes, your Honour.  I understand that.  I mean today is to correct the fact that I was one minute late on the day of filing the documents.

HER HONOUR:   No, it goes a little further than that.  Because it was not filed within the correct time you would have had to apply to have it reinstated.  Now, that has opened up the issue about whether or not you have any prospects of success in obtaining a grant of special leave.  That is just how it has fallen out.  But the fact is that it is open to me to consider whether you have any prospects of success in obtaining special leave.  That is a matter relevant to my discretion in relation to whether or not I reinstate your application.

MR SMITH:   Yes, your Honour. Well, with that in regard, your Honour, I believe that we do have a good argument for it to be reinstated as in all this time we have argued our rights under section 116 of the Constitution as they are denying us our right to exercise our religious beliefs which are also covered under the International Covenant on Civil and Political Rights which became a law under the Human Rights and Equal Opportunities Commission Act 1986 under section 47, your Honour, in Schedule 2 where all persons have a right to their religious beliefs ‑ ‑ ‑

HER HONOUR:   How is that connected with the Council’s case against you in relation to planning permission?

MR SMITH:   Your Honour, not to get into the God bit too much, as I am the senior minister of our church, our church is incorporated, we have shown these documents in the past and it is our belief that God gave man dominion over the earth to do with and for the Council – or for the Government for that matter, to remove that dominion would be to place themselves as a god.  That is how we see it and in one of the Ten Commandments our God is a jealous god and he will not allow us to bow down to any other god.

HER HONOUR:   Well, I think I understand what you are saying about – that is one basis you have put forward.

MR SMITH:   Yes, your Honour.

HER HONOUR:   You say that the land is immune from the regulations because of that.  You also say it is immune from the integrated planning act because it comprises an independent sovereign state.

MR SMITH:   Your Honour, well if you mentioned that, in the Planning and Environmental Court this matter was never brought up.  Also, we did mention it in the Appeals Court, but only to the fact that the learned ‑ ‑ ‑

HER HONOUR:   I thought Judge Wilson in the Planning and Environment Court referred to this.

MR SMITH:   He did, your Honour, and that he referred to it ‑ ‑ ‑

HER HONOUR:   Did he misunderstand an argument?

MR SMITH:   He misunderstood. He said section 106 of the Constitution, which is totally irrelevant to a person’s religious beliefs.

HER HONOUR:   But you were asserting that being an independent sovereign state, the land was immune from planning regulations?

MR SMITH:   Yes, your Honour, and that is quite true. 

HER HONOUR:   The other basis that his Honour and the Court of Appeal noted that you put forward was that because the structures in question were on freehold title, the planning requirements cannot operate with respect to them.

MR SMITH:   Yes, your Honour. That is another point. The Parliament of the State of Queensland was given power under the Constitution, Queensland Constitution, section 69, 2001, and sections 30 and 40 of 1876 and mentioned that all contracts were State – all deeds were State, sorry, all deeds were contracts and all contracts must be upheld. Section 51 of the Queensland Constitution all ministers must maintain all contracts. Your Honour, they are trying to break the contract because in the contract the land is held in fee simple and this matter has been heard before the High Court in cases such as Commonwealth v New South Wales, 1923, also Fejo v Northern Territory, 1991.

Your Honour, they categorically state that a person can do with their land whatever their mind can imagine, even to the point of destruction, if that were possible.  Your Honour, we did not ask to destroy the land.  It also says that it forbids all else, all others from any enjoyment or access or any other dealings with the land without the consent of the owner.  Your Honour, these people do not have that consent.

Also, in the Constitution under Garran’s - under the annotated version – sorry of Garran’s Constitution of Australia, 51(xxxix), last sentence, which is 123 of his summations, it says – can I get the book out, your Honour so we have it clearly stated – here it is here: “It will be also authorised the appointment of proper officers to preserve the records and enforce the judgments, decrees, orders and sentences of the Federal Court”. Your Honour, that says that the decisions handed down by the High Court are binding on all and that they must be enforced.

HER HONOUR:    I do not think there is any doubt about that.

MR SMITH:   So, your Honour, if these decisions were handed down then they must be enforced and as well, your Honour, because the Parliament of the State were parties to the contracts or deeds of grant, they are prohibited by estoppel which would allow anyone to interfere with these contracts.  Your Honour, if one cannot interfere with the mineral rights reserved to the Crown which is in the deeds of grant, then one would also have to assume that one cannot interfere with the rights that have been given to the purchaser, to his heirs and assigns forever and these rights were over the…..the deeds and in fee simple.

So with all these things how can the respondent interfere with these laws? These are laws that are superior to State laws under section 51 of the Constitution, your Honour. I would also mention that under section 107 of the Constitution the Commonwealth has a power to remove the power from the Parliament. When the Commonwealth signed the treaty – one in particular is the International Covenant on Civil and Political Rights – it guaranteed the people of Australia ‑ ‑ ‑

HER HONOUR:   I am familiar with it.

MR SMITH:   Yes.

HER HONOUR:   I think you can take it that I am familiar with the various treaties and instruments you are referring ‑ ‑ ‑

MR SMITH:   Yes, well in the past, your Honour – I am not saying, your Honour, you do not know, but these people here obviously do not know because I have been told that before and then everyone seems to forget it.  So if you would not mind, I would like to ‑ ‑ ‑

HER HONOUR:   No, no.  You are not here to give them a lecture.  You are here to persuade me whether or not an application should be reinstated and I am telling you that I understand the instruments that you are referring to.  I only want you to make the points that you wish to make about why your application should be reinstated.

MR SMITH:   Well, your Honour, I ask that my applications be reinstated because we showed due diligence in filing the documents, in obtaining proper legal counsel or ‑ ‑ ‑

HER HONOUR:   I have understood your argument ‑ ‑ ‑

MR SMITH:   ‑ ‑ ‑ and all that and we were prevented from filing it because we were one minute late when the elevators shut down and we were on the third floor of this thing, not to say that we could consider ourselves as being falsely imprisoned but if we had have been able to continue our journey we would have reached the sixth floor where we may have actually filed these documents, even though they were one minute late.  As I have said in that article, or in that summation, that we did show due diligence.  We obtained legal assistance in filing documents ‑ ‑ ‑

HER HONOUR:   This is after they were – you attempted to file them the first time.  They were rejected as incorrect and then you got some assistance.

MR SMITH:   No, this was before I got the assistance.  The original assistance was poor.  We got here at midday.  We waited till around 1 o’clock to have it.  Whether it was right or wrong we were then told that it was wrong.  Your Honour, I am not familiar with the city of Brisbane and we searched everywhere – in fact, we ended up walking – we went to the library in Brisbane, to several other Internet cafes and places where we thought we may be able to get them formatted.  We ended up at the far end of Queen Street and – excuse me, your Honour, their name escapes me, but I do have their bill here somewhere.

HER HONOUR:   I think – you do not need to really expand on this, Mr Smith, because I think it is accepted that by the time ‑ ‑ ‑

MR SMITH:   I mean, we did show ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ you came back and tried to do it, you were just too late and that is how it happened.

MR SMITH:   Yes, and to ‑ ‑ ‑

HER HONOUR:   No one is disputing that.

MR SMITH:   Your Honour, so what else can we say.  We have tried our due diligence to file these documents on time.

HER HONOUR:   Yes.

MR SMITH:   With the other reasonings why we felt the brief summary – the reason why they were not put in the brief summary, as we have stated in our summation, is that it really – to explain it is not brief and we would be best to explain it verbally and we believe that to tell someone something with relation to that would become more of an excuse than a reason and that is why we also felt that it would be far better to stand before yourself or to whomever would have been appointed and to explain the situation.  Your Honour, in their what’s‑his‑name – and this may be the wrong time to bring it up, but they are suggesting that they may receive costs and they may well be deserving of costs but ‑ ‑ ‑

HER HONOUR:   That is only if you do not succeed.  That is a matter we will come to after we decide whether or not you succeed in your application.

MR SMITH:   Yes.

HER HONOUR:   That is a separate matter.  We can deal with that later.

MR SMITH:   Okay then, your Honour.  I mean, I have received a copy of their documents.  Under the direction of the Deputy Registrar they were to be signed – or they were to be sealed and serviced.  The copy of the documents I received on Tuesday evening after getting home, in our mailbox, were not sealed.  They were just the documents and in real fact, I am not trying to ‑ ‑ ‑

HER HONOUR:   These are just the written submissions.

MR SMITH:   Yes.

HER HONOUR:   They would not be required to be sealed.

MR SMITH:   I was sort of like informed that I had to have ours sealed and the lady in the office here did seal them or in the Registry ‑ ‑ ‑

HER HONOUR:   In any event, you received a copy.  The point of the written submissions is you need to have notice of their argument.  You did receive them and you have had a few days to consider.

MR SMITH:   I did receive them after the fact, your Honour, after we had returned from Brisbane.

HER HONOUR:   Yes.  You were given a copy whilst you were in Brisbane on Tuesday.

MR SMITH:   Yes, your Honour.  They were not sealed but we assume they are correct.

HER HONOUR:   Yes.

MR SMITH:   In reading those copies, your Honour, is the reasons for our summation which I have handed up to you.

HER HONOUR:   Yes.

MR SMITH:   We found it extremely difficult to understand and that could be because of my poor education, but I think I have made it reasonably clear in my grasp of their summations.  Other than that, your Honour, there is really – I mean it is all on print.

HER HONOUR:   I have read what you have to say.

MR SMITH:   I believe, your Honour, there are sufficient grounds to have the matter opened again – if that is the right term - and passed on to the two Justices to accept or to consider the right of the appeal.  Other than that, your Honour ‑ ‑ ‑

HER HONOUR:   Yes, thank you, Mr Smith.

MR SMITH:   I have just then received other documents from our learned friend there.  We have not had a chance to read them and honestly, I am really not in a fit state at this moment to read them.

HER HONOUR:   What documents are these, Mr Fynes‑Clinton?

MR FYNES‑CLINTON:   Your Honour, the Court asked for an affidavit on Tuesday confirming the change in status.

HER HONOUR:   About the Council.

MR FYNES‑CLINTON:   And secondly, your Honour, if a question of the costs arises, my instructing solicitor has sworn an affidavit about the sequence of events, but that is only relevant if the question of costs arises.

MR SMITH:   With regards to ‑ ‑ ‑

HER HONOUR:   When were they provided to Mr Smith?

MR FYNES‑CLINTON:   Just this morning, your Honour.

HER HONOUR:   All right.  Do you have a copy – you are seeking to rely on them if the question of costs arises?

MR FYNES‑CLINTON:   If Mr Smith contests the facts, yes, your Honour.

HER HONOUR:   All right.  We will come back to those two documents.  They are not relevant to the question of whether or not to reinstate.  One is relevant to costs and the other one is just an affidavit as to the name of the Council which does not need to concern you.

MR SMITH:   Also, your Honour, I did see one there that said that the documents were filed in the Council’s office at 1.00 pm on the 6th of this month.  Your Honour, I have a witness – if you need, I can call a witness to state categorically that the documents were filed at 9.30 or approximately 9.30 on that morning.  We are expected to be truthful and honest in all our works and do our best with regards to punctuation, grammar and all the rest of it.  One would ask no more and no less from learned people to do the same.

HER HONOUR:   As I say, as I understand it, neither of those documents is relevant to the matter we are looking at just at the moment, the application to reinstate.  One of the affidavits may be relevant to the question of costs and that depends upon my decision.

MR SMITH:   Yes.

HER HONOUR:   So we would deal with that separately if I do not reinstate your application.

MR SMITH:   Yes.  I actually have covered costs in my summation of their thing.

HER HONOUR:   Yes, I saw that.

MR SMITH:   Your Honour, if they made a mistake and I made a mistake then I do not see why there should be costs awarded to either party.

HER HONOUR:   All right.  We will come back to that.

MR SMITH:   Thank you, your Honour.

HER HONOUR:   Thank you.  Mr Fynes‑Clinton, I do not need to hear from you.

MR FYNES‑CLINTON:   Thank you, your Honour.

HER HONOUR:   The applicant seeks reinstatement of his application for special leave which was deemed abandoned on 25 June 2009 pursuant to rule 41.10.4, by reason of his failure to file his written case and draft notice of appeal within 28 days after filing his application for special leave.

The decision appealed from, of the Court of Appeal of the Supreme Court of Queensland, was given on 24 April 2009.  The application for special leave was filed on 28 May 2009.  The applicant was advised by the Registry of the dates by which he was to file his case and his draft notice of appeal.  The applicant says that he attended at the Brisbane Registry on 25 June 2009 but that his documents were rejected as incorrect.  He says that he was unable to return within time that day to seek to file again.  He applied to reinstate the application on 30 June 2009.

The delay involved is relatively short and the respondent does not take issue with the explanation offered by the applicant.  Nevertheless, the respondent submits that the application should be refused because this is a case where it is plain that the applicant’s application for special leave can have no real prospect of success. 

The case brought against the applicant by the Council concerned the erection of two structures by him without its approval. The Planning and Environment Court made orders which obliged him to apply for the necessary permits. The arguments he advanced in defence, and which were rejected by that Court and the Court of Appeal were (1) that because the structures are on freehold title, planning requirements cannot operate; (2) that the land is immune from such regulation because it comprises an independent sovereign state; and (3) that the Constitution provides the land immunity by reason of his religious beliefs.

The Court of Appeal observed that the applicant advanced other arguments referable to various legislation and international treaties, but that none of them could be seen to have any relevance to the case.  The Court of Appeal concluded that no argument was advanced which had sufficient prospects of success to warrant the grant of leave to appeal to that Court. 

The applicant has filed a summary of the argument he would present in support of his application for special leave to appeal in this Court were his application to be reinstated.  I have considered those arguments.  I have no reason to doubt the conclusion reached by the Court of Appeal.  The applicant has no discernible prospects of success on an application for special leave.  The application for reinstatement is therefore refused.  Do you seek costs, Mr Fynes‑Clinton?

MR FYNES‑CLINTON:   Yes, your Honour.  I seek the costs of today as the first submission and I submit that it is simply a case that the application had no real merit and that costs should follow the event.  As to the costs of Tuesday, I can tell the Court there are no additional fees for counsel but some additional solicitor’s costs have been incurred and I am instructed to seek those costs as well.

In order to make that submission, I need to outline the facts of what occurred, at least on my instructions.  As indicated before, there is an affidavit about those matters.  If necessary, but to save the Court’s time, I propose to outline what should be uncontroversial facts and obviously if Mr Smith has a difficulty then the Court may see the need to go into evidence.

Very shortly, your Honour, the parties were told by this Court as to the timing for the provision of written submissions.  Mr Smith was required to provide his by 6 August, last Thursday, and he did so.  My instructions are that they were filed in this Court on that morning and delivered to the Council at about 1.00 pm.  I understand Mr Smith may have some dispute with that fact, but there is no dispute that he delivered his submissions on that day.  The Council’s submissions, which were ordered to be delivered by the 10th, were then prepared on the 7th.  They were not filed in this Court until the 10th, but they were posted to Mr Smith on the afternoon of the 7th.

HER HONOUR:   That is the Friday?

MR FYNES‑CLINTON:   That is the Friday, your Honour.  Mr Smith has no fax number, at least no fax number disclosed.  Mr Smith has no email address and Mr Wiemers, my instructing solicitor, deposes that he had no reason to believe that a document posted on Friday would not be delivered in the ordinary course of post on Monday.  It is on that basis, your Honour, that the respondent ‑ ‑ ‑

HER HONOUR:   Forgive me for interrupting.  I think it is fair to say that when the Court made the directions, it was probably unaware of the difficulties of communication with the parties.

MR FYNES‑CLINTON:   That would seem to be so, your Honour, because the assumption these days is invariably that a fax or email is available, which in this case it simply was not.  But Mr Wiemers took particular care to post on Friday, rather than Monday, so that in the ordinary course of post, as he understood it, the submissions would have been received on Monday in time for Tuesday’s hearing.

HER HONOUR:   Yes.

MR FYNES‑CLINTON:   It may well be the case that with hindsight and given that Mr Smith is unrepresented the prudence on my part would have required that I ask the question of him on Tuesday.  Equally, Mr Smith made no approach - Mr Smith, aware that the Court had ordered my client to file submissions made no approach to my side to say, “I’ve not received the submissions”. 

HER HONOUR:   Yes.

MR FYNES‑CLINTON:   As I said, your Honour, I can place on the record there are no additional counsel’s fees for Tuesday, but there are additional solicitor’s costs and on the basis outlined I seek those costs as well.

HER HONOUR:   Mr Smith, just in relation firstly to the costs of today, you appreciate I have refused your application.

MR SMITH:   Yes, your Honour.

HER HONOUR:   So that you would be aware, I think, by now in the courts that the usual order is that you pay the costs of the other party because you were not successful.  That is in relation to today.

MR SMITH:   Yes, your Honour.

HER HONOUR:   But there is a separate issue about the costs on the adjourned date on Tuesday.  Mr Fynes‑Clinton is saying that it was through no fault of their own – they tried to get the submissions to you by post ahead of the time that the Court had allowed for them, but the Court, effectively, had not allowed sufficient time.

MR SMITH:   Excuse me, your Honour. 

HER HONOUR:   Yes.

MR SMITH:   They are quite aware of our postal system as they have been told on numerous occasions that we receive post Tuesdays and Fridays only and usually not until after 10 to 11 o’clock.  Your Honour, I believe that they did this in a way to hinder ‑ ‑ ‑

HER HONOUR:   They were compliant with the Court’s directions, but the Court had not appreciated, when it set the timetable, that there was not sufficient time ‑ ‑ ‑

MR SMITH:   Yes, your Honour, and also I had Mr – whatever his name is, stated that they were filed on the 6th and served on the 6th.  Your Honour, they were filed on the 5th.  We returned back to our place by 6.30 that afternoon and could not file them on them, but as we were going out of town on the following morning, we did file them in the office by 9.30 which was a long time before 4 o’clock of that afternoon as required.  Your Honour, this is just another way where they try and bob and weave around things and not necessarily ‑ ‑ ‑

HER HONOUR:   Well, I do not see that, Mr Smith.  This is a fairly straightforward question, I think.

MR SMITH:   Yes, your Honour.

HER HONOUR:   Yes, thank you.

MR SMITH:   Also, your Honour, I realise that costs need to be paid for today.

HER HONOUR:   Yes.

MR SMITH:   Then our costs need to be paid for the other day in relation to their failing to carry out the Court’s or the Registry’s instructions.

HER HONOUR:   The orders of the Court will be that the application is dismissed and that the applicant pay the respondent’s costs, including costs incurred by its solicitor’s attendance on the adjourned hearing.

MR FYNES‑CLINTON:   Thank you, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 10.46 AM THE MATTER WAS CONCLUDED