Staats S.J. v The Commonwealth of Australia
[1995] FCA 155
•21 Feb 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY )
GENERAL DIVISION ) No VG 10 of 1995
BETWEEN:
STEVEN J. STAATS
Applicant
- and -
THE COMMONWEALTH OF AUSTRALIA and ANOR
Respondent
Coram: Olney J
Place: Melbourne
Date: 21 February 1995
MINUTE OF ORDER
THE COURT ORDERS THAT the applicant pay the first respondent's costs of the proceedings including the costs of the amended notice of motion.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY )
GENERAL DIVISION ) No VG 10 of 1995
BETWEEN:
STEVEN J. STAATS
Applicant
- and -
THE COMMONWEALTH OF AUSTRALIA and ANOR
Respondent
Coram: Olney J
Place: Melbourne
Date: 21 February 1995
REASONS FOR JUDGMENT
By an application filed on 19 January 1995 the applicant claims:
That his naturalisation as an Australian citizen on 19 March 1958 is ultra vires;
That the renunciation of his Netherlands nationality and citizenship is ultra vires; and
That he is entitled to apply for and obtain in Australia a Netherlands passport and "to obtain all benefits and entitlements pursuant thereto and all compensatory compensation, restitution and otherwise all damages and loss".
No specific relief is sought in the application but presumably the applicant seeks declarations in terms of the claims that he makes. No statement of claim has been filed.
The respondents named in the application are the Commonwealth of Australia and the Royal Netherlands Government. The Commonwealth has entered a conditional appearance pursuant to order 9 rule 6 of the Federal Court Rules and has also filed a notice of objection to competency pursuant to order 54 rule 4 objecting to the jurisdiction of the Court to try the application on the ground that the application discloses no reasonable cause of action.
The Royal Netherlands Government has not entered an appearance. No order for service out of the jurisdiction or for substituted service has been sought or made and, although the applicant has sworn an affidavit to the effect that the application was served on the Royal Netherlands Government Consulate in Melbourne on 19 January 1995 that, in my opinion, does not amount to proper service. Be that as it may, the matter now before the Court raises issues which are common to both respondents and can be adequately dealt with in the absence of the second respondent.
On 7 February 1995 the Commonwealth filed a notice of motion seeking:
An order under order 20 Rule 2(1)(a) that the application under the Administrative Decisions (Judicial Review) Act 1977 be dismissed upon the ground that it does not disclose any reasonable cause of action;
In the alternative, orders and directions for the hearing and determination of the respondent's objection to competency; and
an order that the applicant pay the respondent's costs of the motion.
The notice of motion was supported by an affidavit of Umberto Torresi, sworn on 6 February 1995 in which he deposed to being the solicitor having conduct of the matter on behalf of the Australian Government Solicitor and to his belief that the application disclosed no reasonable cause of action.
On 15 February 1995 the applicant filed a notice of motion seeking declarations pursuant to s 21 of the Federal Court of Australia Act which, in effect, raised a variety of issues going to the basis of the Commonwealth's objection to competency and to its notice of motion. The applicant's motion was supported by a lengthy affidavit.
On 16 February 1995 the Commonwealth filed an amended notice of motion seeking:
An order under order 20 rule 2(1) that the application be dismissed as disclosing no reasonable cause of action or, alternatively, is frivolous or vexatious;
An order abridging time for the service of the amended notice of motion or, alternatively, dispensing with service; and
An order that the applicant pay the respondent's costs of the motion.
This notice of motion was supported by a further affidavit of Mr Torresi.
On 20 February 1995 the applicant filed what is described as "New Notice of Motion" in which the following persons are named as respondents: George W. Turnbull, Director, Australian Government's Office, Melbourne, Solicitor for the Commonwealth of Australia, Commonwealth Officer, first respondent; Umberto Torresi, principal solicitor, General Law, Australian Government Solicitor's Office, Melbourne, Solicitor for the Commonwealth of Australia, Commonwealth Officer, second respondent; David A. Rockefeller, third respondent; Coles-Myer Limited, fourth respondent; Consul-General, People's Republic of China to Victoria, fifth respondent; and Consul-General, Republic of Italy to Victoria, sixth respondent. The Commonwealth and the Royal Netherlands Government are not named as respondents which raises a question as to the competence of the motion.
In an affidavit in support of the so-called new notice of motion, the applicant says amongst other things, and I quote very briefly at paragraph 7:
The first respondent's alleged notice of motion of 16 February 1995
(It is difficult to know whether the reference to the first respondent is intended to be to the Commonwealth of Australia or to George W. Turnbull):
... is ultra vires and without jurisdiction because it is in bad faith, because the first respondent knows that there is accrued jurisdiction in the Federal Court of Australia for the application and all powers therein and that the application is most genuine, substantial and
proper for the relief and remedy sought pursuant to section 21 of the Federal Court of Australia Act 1976 and cannot be construed in any way as allegedly pursuant to the alleged criteria as disclosing no reasonable cause of action and, alternatively, is frivolous or vexatious.
And in paragraph 9 it is said:
The purported affidavit of the second respondent is ultra vires and without jurisdiction so on dictation in bad faith who is fully cognisant that the application of 18 January 1995 has jurisdiction and that section of the Federal Court of Australia Act 1976 is appropriate for all relief and remedy claimed.
And paragraph 14:
Accordingly, injunctions against the first and second respondents from proceeding any further with their purported amended notice of motion and alleged affidavit of 16 February 1995 on the grounds of ultra vires and without jurisdiction is completely justified.
The applicant filed yet another notice of motion on 20 February 1995. This is described as "New notice of Motion for relief in original proceedings for additional orders". The same six respondents are named as in the other motion filed on the same day. It seeks the following additional orders:
That the applicant's new notice of motion for injunctive relief against the Commonwealth officers and declarations against the third, fourth, fifth and sixth respondents be heard prior to any hearing of
the amended notice of motion and affidavit of the Commonwealth of Australia of 16 February 1995 and in proceeding VG10 of 1995 Staats v Commonwealth of Australia and Royal Netherlands Government for which leave is sought;
That filing and service hereof and the new notice of motion of the applicant dated 17 February 1995 be abridged if leave of a justice is granted.
The applicant has filed an affidavit in which he deposes to serving the various documents filed on 20 February 1995 on the persons and other entities named as the third, fourth, fifth and sixth respondents in those documents none of whom has entered an appearance.
When the matter came on for hearing the applicant appeared in person and Mr Moseley appeared for the Commonwealth. I invited Mr Moseley to address his amended notice of motion and in so doing to make any submissions he thought relevant to the other matters raised in the other motions filed by the applicant. I then invited the applicant to put his case and, at his request, I granted a short adjournment to enable him to read several authorities that had been referred to in argument by Mr Mosley. Mr Moseley did not seek to make any reply.
The Commonwealth asks the Court to exercise its power under order 20, rule 2, of the Federal Court Rules, to dismiss the proceeding. Order 20, rule 2(1) provides:
Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
a)no reasonable cause of action is disclosed;
b)the proceeding is frivolous or vexatious; or
c)the proceeding is an abuse of a process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
Section 19 of the Federal Court of Australia Act provides that:
The Court has such original jurisdiction as is vested in it by laws made by the Parliament.
The matter central to the applicant's case has to do with action taken under the Nationality and Citizenship Act 1948 (which is now the Australian Citizenship Act). There is no suggestion that that act or any other statute, specifically vests jurisdiction in the Court the power to make the orders sought.
At an early stage of the proceedings the Commonwealth apparently thought that the applicant sought to rely upon the provisions of the Administrative Decisions (Judicial Review) Act. This was an understandable error as it would seem that the ADJR Act provided the most likely avenue of approach to this Court but the applicant does not seek to rely on the ADJR Act and indeed it seems clear that such a course would not have been open to him.
There is clearly no basis to bring this matter within the Court's jurisdiction pursuant to s 19 of the Federal Court of Australia Act.
The applicant has made reference to ss 21 and 32 of the Federal Court of Australia Act.
Section 21(1) provides that:
The Court may in relation to a matter in which it has original jurisdiction make a binding declaration of right.
While s 32(1) provides that:
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.
Section 21(1) can have no application unless the Court has original jurisdiction to entertain the application. Such jurisdiction does not exist in this case. The applicant has however recited a whole litany of proceedings in which he has been involved over the last five or six years and he says that the present matter is associated with those proceedings in a manner contemplated by s 32. How this is said to be so has not been explained but even if it be the case, the appropriate remedy would be to seek the relief now sought in one or other of those proceedings. I reject his argument that s 32 of the Federal Court of Australia Act gives this Court the jurisdiction to grant the relief sought.
In my opinion, the application in this proceeding does not disclose a reasonable cause of action within the jurisdiction of this Court and the appropriate remedy is to dismiss the proceeding.
It is unnecessary to deal with arguments advanced in relation to the Commonwealth's assertion that the proceeding is vexatious or an abuse of process. It is also unnecessary for any consideration to be given to the question of whether the
two notices of motion filed by the applicant on 20 February 1995 are competent. The order dismissing the proceeding will have the effect of disposing of all other outstanding interlocutory proceedings.
The normal rule is that costs follow the event except in special circumstances when some other order will be made. The applicant has brought these proceedings without any legal justification. There are no special circumstances which warrant departure from the normal rule. There will be an order that the applicant pay the first respondent's costs of the proceedings including the costs of the amended notice of motion.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated: 21 February 1995.
Hearing: 21 February 1995
Place: Melbourne
Judgment: 21 February 1995
Appearances:
The applicant appeared in person.
Mr W. Moseley (instructed by Australian Government Solicitor)
appeared for the first respondent.
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